Counter-Terrorism and Border Security Bill

Lord Thomas of Gresford Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 31st October 2018 Lords Chamber

[Lord Faulks (Con)]

My Lords, this amendment in my name and those of my noble friends Lord Hodgson and Lord Bethell is to add an offence of treason to the Bill. The offence of treason, or high treason, has a rather chequered history, I readily admit. The 1351 treason offence remains on the statute book. It focuses significantly on the safety of the sovereign and prohibitions on aiding the sovereign’s enemies. Important though these matters are, it is now generally accepted that that Act is not fit for purpose, and having an offence on the statute book that cannot be used is not satisfactory.

There are now a considerable number of terrorist offences that exist to augment the criminal law. They derive mainly from the Terrorism Acts of 2000 and 2006. This Bill seeks to add to those offences, in recognition of the changing nature of the threat and to provide a nimble response, in legislative terms, to what is happening on the ground. If the nature of terrorism is changing as fast as the noble Baroness, Lady Manningham-Buller, said at Second Reading, there will inevitably be something of a legislative lag, but the Bill seems for the most part to be a sensible response. The reviewers of terrorism legislation have been vigilant in the past—two of them are Members of your Lordships’ House and are present in the Committee today—and this has very much helped the Government to consider what laws need to be updated. Ultimately, though, it is a matter for the Government how they respond to the threats and, in so far as possible, anticipate the nature of terrorist threats in future.

When I first heard the suggestion that we might need a modern law of treason, I was doubtful about either the wisdom of such a move or the need for it. Surely what was required was a much more nuanced response, and I was a little concerned about the potential risk of attracting martyrs if there was seen to be a somewhat heavy-handed response to the various threats from terrorism. I then had the opportunity to read Policy Exchange’s publication Aiding the Enemy, to which I referred at Second Reading. Its distinguished authors make a compelling case. The enthusiastic responses to the study came from a number of important sources, including the former Home Secretary, a former commander at New Scotland Yard and head of Counter Terrorism Command, and a former director-general of the Security Service.

This Bill increases sentences and creates more security at the border, together with some new offences. However, the debates we have already had in Committee illustrate how difficult it will be to satisfy Parliament, and in particular this House, that the various provisions in the Bill adequately reflect the balance between the need to protect citizens from terrorism and the need to preserve civil liberties. After all, the Liberal Democrats have given notice of their intention to oppose each of the first four clauses standing part of the Bill. In particular, I note the debate in relation to Clause 4 two days ago in this House.

It seems important to step back a little. At the heart of this new offence of treason is the question of allegiance or loyalty owed to this country by a subject or citizen of this country, or by someone who is settled here—settlement being a term of art in immigration law. Australia, Canada and New Zealand have responded to this challenge, albeit in slightly different ways. As recently as June, Australia legislated to deal with citizens or relevant others fighting Australian forces abroad. Many other countries have laws in relation to treason.

Let me make it clear that the creation of this new offence is not intended—nor would it act—as any brake on free speech or the right to express dissent or criticism of the Government in relation to any of their activities, and in particular their foreign policy or decision to wage wars. Criticism and overt expressions of dissent are part of a healthy democracy. However, such dissent should not extend, in effect, to waging war against your own country, whether in the United Kingdom or elsewhere, Nor should it include helping, planning or preparing an attack, giving military or other intelligence, or in any way assisting such attacks.

What is the scale of the problem? It is one with multiple dimensions, including British citizens or permanent residents who go abroad to fight with ISIS in Syria or with the Taliban, but also British citizens and others who help those groups or others who intend to attack the UK or fight UK forces in the UK itself. It is estimated that about 900 British terror suspects went to Syria and Iraq during the wars. Those who have not been killed, or who are not currently prisoners, have been described by our senior counterterrorism officer as a “big national security threat”. It is true that when they return they will—or should—face immediate arrest and questioning and will be encouraged to enter deradicalisation schemes. But it is said that prosecution will be difficult, particularly against the many women involved—the so-called brides of Jihad—who will or may claim duress or in other ways try and distance themselves from what others may have done.

What about Anjem Choudary, released from prison on 19 October, half way through his in my view inadequate sentence for supporting ISIS? Now he will be placed on a deradicalisation or anti-extremism course, and a considerable amount of our resources will be spent on monitoring his activities, having regard to the range and scope of his encouragement of so many other terrorists. What he did was undoubtedly a betrayal of his country. He acted as a recruiting agent for a group that intended to cause and has caused attacks on the United Kingdom, and which the UK faces abroad. He would be guilty of treason.

Should the authorities simply wait for a British citizen to commit serious offences—in other words, to wait for a returning traitor, as they seem to have done with Khalid Ali, a British citizen who spent five years serving with the Taliban in Afghanistan before returning to the United Kingdom in late 2016? Apprehended in Whitehall with knives in his possession, he was sentenced on 20 July to life imprisonment for preparing acts of terrorism, but he ought to have been prosecuted for treason as soon as his activities in Afghanistan came to light.

Then there is Rabar Mala, an Iraqi national who had remained in the UK unlawfully after his visa expired in 2008. He became the first person to be convicted for possession of property for the purposes of terrorism. He activated some 360 SIM cards for fighters in Iraq and Syria and co-ordinated ISIS communications. He was also planning possible attacks in the United Kingdom, inviting funds and personnel to be sent to enable an attack on a major civilian target. Being neither British nor a settled non-citizen, had Mala served ISIS outside the UK he would not have breached the offence I propose. But while voluntarily living among us he owed a duty of allegiance to the United Kingdom which he betrayed by serving ISIS, aiding its military and intelligence operations in Iraq and Syria and planning attacks on the United Kingdom. The offence for which he was convicted and sentenced to eight years manifestly fails to recognise the true nature of his wrongdoing or to provide adequate punishment for it.

May I say a bit about the drafting of this amendment? I am, as ever, indebted to the Public Bill Office for its swift and helpful engagement with my proposed amendment, although I was somewhat disappointed at the changes that it insisted I make to it—as I say, it was based on an Australian version of treason—in particular the scattering in the amendment of the word “terrorist”. This apparently was to bring the amendment within scope. If you are fighting or aiding the fight against the United Kingdom outside the United Kingdom or inside it, there does not seem to be a significant distinction.

It would be odd if a British subject assisting the fight abroad was not guilty of a terrorist attack whereas the domestic equivalent constituted one.

[Lord Thomas of Gresford (LD)]

Could the noble Lord help me? Is he saying that his amendment covers an attack on British forces operating outside the United Kingdom? I do not read it in that way.

[Lord Faulks]

It does not, which is why I was expressing regret at the final form of the amendment. If we are to return to this amendment, I shall seek perhaps to expand its scope—I hope not having an undue squabble with the authorities—so that it comes squarely within what the noble Lord suggests. If it is necessary to bring the amendment back with further refinements, they may include additional conduct which might be regarded as treason, such as impeding the operation of Her Majesty’s forces or prejudicing the security and defence of the United Kingdom.

Clearly, a prosecution under this offence would be no small thing. It would need the consent of the Attorney-General to bring a prosecution since it is an offence against the state. I also accept that many offences which might be regarded as treason would be caught up in all the many other terrorist offences on the statute book, and thus I would not expect it to make a frequent appearance. Nor would I claim that the existence of this offence would be a panacea, but there is a significant gap and filling it might avoid some of the complications, say, of the designated area offence in Clause 4.

Those who live and benefit from life in the United Kingdom yet involve themselves in attacks against the United Kingdom either here or abroad are surely guilty of treason. Are we too timid to call it that? Is it because allegiance to our country is considered unfashionable? If so, that seems to me to verge on the decadent, or at the very least it shows a country lacking in self-confidence. Those who reject the values of this country have the option of relinquishing their citizenship. But while they remain here or regard it as their home, surely they owe a duty to other citizens, who have their own human rights. This new definition of treason is a way of underlining that duty. I beg to move.

--- Later in debate ---

[Lord Elystan-Morgan]

He was an American.

[Lord Thomas of Gresford]

He was an American who took a German passport in 1940 but was nevertheless convicted when he was a German citizen.

[Baroness Williams of Trafford]

That is a very interesting history. I know that many Americans claim to be Irish but it is not every day that we get a chance to discuss a law that goes back to 1351. It has been an interesting debate.

--- Later in debate ---

[Earl Howe]

There is always a judgment to be made. Once one has reached the conclusion that I have just articulated, there is indeed scope for argument about whether the increase should take place at all—we believe that it should—and, if so, to what extent. The Government have taken a view. We are putting it to Parliament and we believe it strikes the right balance in this context.

[Lord Thomas of Gresford]

The guidelines which came into effect on 27 April this year, a few months ago, were arrived at following consultation and a request for comment. They were considered by the Justice Committee in the House of Commons. What is the review to which the noble Earl is referring? What was its date? Was it not before the Sentencing Council at that time?

I assume that the noble Earl would expect the Sentencing Council to go back to its guidelines in the light of what he has said and the lack of principle to which the noble Lord referred a moment ago, and review the appropriate sentencing. These sentencing guidelines set out six steps for a judge to take before he announces the sentence. They are detailed, categorise the nature of the crime and consider what aggravating or mitigating circumstances there are. There are six steps to getting to a decision. They were all set out on 27 April this year. As the Prime Minister would say, what has changed? Is it the review? If so, what is this review?

[Earl Howe]

My Lords, it may be helpful to the noble Lord and the Committee if I quote part of a press release which the Sentencing Council issued on 28 March this year when it launched the publication of the new sentencing guidelines for terrorism offences:

“In terms of the impact on sentencing levels, it is likely that in relation to some offences, such as the offences of preparing terrorist acts and building explosive devices, there will be increases in sentence for lower level offences. These are the kinds of situations where preparations might not be as well developed or an offender may be offering a small amount of assistance to others. The Council decided that, when considering these actions in the current climate, where a terrorist act could be planned in a very short time period, using readily available items such as vehicles as weapons, combined with online extremist material providing encouragement and inspiration, these lower-level offences are more serious than they have previously been perceived”.


Max Hill QC, the Independent Reviewer of Terrorism Legislation, when he gave evidence to the Joint Committee on Human Rights, said:

“The other aspect which is partly to do with the passage of time as well is that the sentencing powers of those few experienced senior judges who deal with terrorism cases are capable of helpful review … There are examples where a higher discretionary maximum may be appropriate. It is not my purpose to talk about individual cases, but the Choudary case, which I have mentioned, might be a case in point. Some commentators were surprised at the sentence that he received, given the gravity of his offending, but the judge applied the statutory maximum, discounted in the various ways that he is enjoined to do. It seems to me that there is an argument for a higher discretionary maximum”.


That is the context in which the Government have taken the view that they have. I hope that is helpful.

[Lord Thomas of Gresford]

The March press statement was an explanation of the guidelines which were to come into effect on 27 April. It was not looking beyond those guidelines to some future date. Indeed, the noble Earl has not referred to the review that he quoted to us a short time ago—what it is, when it was published and whether it was before the Sentencing Council came to its conclusions. Its March justification for an increase in sentencing power was not for something that might happen now, but because it was increasing the level of sentences with its guidelines in April. What has happened since then?

[Earl Howe]

My Lords, the Sentencing Council’s new guidelines for terrorism offences came into force, as the noble Lord rightly says, on 27 April. In its consultation on the draft guidelines, the council was able to anticipate the proposed increases. Consequently, we believe it will not be a difficult task for the council to modify the guidelines once the Bill is enacted, and the Government will of course work with the council on those increases. Any changes to sentencing will only be made following parliamentary debate and approval.

[Earl Howe]

That is exactly the position. I sense no resistance from the Sentencing Council to that approach and I think it is eminently practicable. To answer the question from the noble Lord, Lord Thomas, about the review, it was announced by my right honourable friend the Prime Minister in June 2017. It is an internal government review and as such was not published, but I have informed the Committee today of some of the conclusions that it reached.

[Lord Thomas of Gresford]

It follows from that that the review was prior to the Sentencing Council coming to its decision in March and April of this year, so its members must have had that material before them. Nothing has happened between April and now that would justify this increase. From what the Minister says, I assume that he is expecting the Sentencing Council to double the sentences that it proposed in April—that is the basis of the increase in sentences from seven years to 15 years. That gives more scope for the judge to do justice, and consequently the Minister would be expecting the Sentencing Council to double its sentences.

[Earl Howe]

My Lords, what I had better do is take advice on the timelines that were involved in all this and clarify that to noble Lords who have taken part in this debate; I would not wish to give the wrong impression about the sequence of events. What I am saying is that the Sentencing Council’s new guidelines, which came into force on 27 April, are capable of being updated, and we believe that that is not a difficult task for the council to do once the Bill is enacted. We will consult with the council to that end, as appropriate.