My Lords, it is a pleasure to follow two such clear and thought-provoking speeches. When this House has debated treason offences in recent years, it has generally been in the context of lending support to terrorist groups, particularly in foreign theatres such as Iraq and Syria. It has never seemed to me that there is much point in bringing treason into this. The bristling arsenal of counterterrorism law is already equal to any conceivable type of assistance
to terrorism or adherence to a terrorist cause, whatever the nationality of the subject and regardless of the state, if any, against which terrorism is directed. As the noble Lord, Lord Bethell, put it, the boundaries are closely drawn and abundantly clear.
Prosecutions for treason in this area would certainly have the potential to raise the emotional temperature, both for us and for the terrorists themselves. I am against such prosecutions because they are exactly what the terrorists want: to elevate their squalid and immoral behaviour into some sort of noble cause. I remember this point being well made from the Government Front Bench by the noble Baroness, Lady Williams, who is not in her place, shortly after I joined your Lordships’ House in 2018. She said that
“prosecuting terrorists for treason would risk giving their actions a credibility … glamour and political status that they do not deserve. It would indicate that we recognised terrorists as being in some formal sense at war with the state, rather than merely regarding them as dangerous criminals.”—[Official Report, 31/10/2018; col. 1382.]
No doubt this is why militant republicans in Northern Ireland were not given the platform of treason trials but rather prosecuted for murder, firearms and explosives offences and, more recently, catch-all offences such as the preparation of terrorist acts, which carries a maximum sentence of life imprisonment.
If we are looking for simple and effective ways to prosecute foreign terrorist fighters—particularly if they are suspected to have been active in a country where assistance from the authorities in gathering evidence is unlikely to be forthcoming—we would do better to concentrate on the offence of entering or remaining in a designated area, which was pioneered in Denmark and Australia, recommended for consideration in one of my own reports as independent reviewer, and introduced by the Counter-Terrorism and Border Security Act 2019. However, I believe that no terrorist hotspot has ever been designated under that Act, so the provision remains unused.
This amendment moves the debate on, as the noble Lord, Lord Bethell, explained, in that it relates to aiding not terrorism, but hostile foreign powers. The clause would target those who assist the Governments of countries with which we are at war or which wish to attack the UK by unspecified means including, I assume, cyberattacks on our national infrastructure. Unlike its Australian equivalent, which was introduced after 9/11 but is still to be used for the first time, it would relate only to hostile state activity—indeed, hostile state belligerence.
I look forward to hearing the Minister’s view on whether there is a gap in our law regarding assistance to the enemy—or will be one once the Bill, including Clauses 3 and 13, has become law. There might be a gap: I believe that Canada and New Zealand have their own laws against assisting the enemy, though I am not very familiar with them. Our own Foreign Enlistment Act 1870, introduced to restrict mercenary activity in the wake of the American Civil War and Franco-Prussian War, may not be as antiquated as the Treason Act 1351, but it was last used in the aftermath of the 1896 Jameson raid. It should certainly be reviewed if we are thinking of legislating in this area.
As we heard from the noble Lord, Lord Bethell, advocates of a treason law are often motivated by a sense that betrayal—in the words of the Policy Exchange report to which he referred, which was co-authored by the current Security Minister—
“is a specific crime against society and one that deserves punishment.”
I entirely understand that feeling, but betrayal is a regrettable fact of life, and one which we do not consider deserves special punishment in other contexts. The child who kills his parents betrays the family bond, but parricide and matricide are simply types of murder. Those who betray the most sacred bond of all—that of matrimony—may be called adulterers but are not criminalised at all. Can it be said that the bond of citizenship is of a wholly different nature, such that to break it must attract the most severe consequences? I think that is a difficult argument to make, particularly in circumstances where it is now so easy for the Home Secretary to break that bond by depriving people of their citizenship whenever she considers it
“conducive to the public good”.
Incidentally, that is something I hope we will look at some day: in the 15 years to 2020, there were 175 such deprivations on national security grounds alone.
This amendment, interestingly enough, does not follow the Policy Exchange model. Like its enacted but unused Australian equivalent, it has nothing whatever to say about betrayal. It applies to everyone, without limitation to British citizens or even to those who have been given leave to enter and remain in the United Kingdom. I assume it is not intended to apply extraterritorially, or it would criminalise the soldiers of foreign armies, contrary to the principle of combat immunity. But if the amendment is motivated by the desire to punish the betrayal of those who owe allegiance to the Crown, it does not succeed in that aim. Indeed, it is difficult to see why it flies under the banner of treason at all.
My position is simple. If there is a gap in the law as regards material assistance to the enemy, I would be in favour of filling it with an offence punishable by life imprisonment. That offence would be directed to our protection and would therefore apply to all persons within the jurisdiction. Betrayal of a bond of allegiance to the state would be an aggravating factor but not the basis for a separate treason offence, which is needed in neither the terrorism context nor the hostile state context.