Today, the Government’s Counter-Terrorism and Border Security Bill arrives in the Lords – and the Upper Chamber has the chance to help make our country safer. Great power competition is rising – states like Russia are ever more likely to attack the UK in ways falling short of outright armed conflict, ranging from cyberattacks and use of chemical weapons to severing undersea cables. The UK also continues to face a severe threat from international terrorism – further attacks are highly likely. Indeed, the Sentencing Council recently noted with alarm the ease with which attacks are now planned and carried out, often with knives or vehicles rather than firearms or explosives, and the speed with which offending escalates.
The Bill amends the offences of encouraging terrorism, disseminating terrorist publications, and viewing proscribed information online. It also introduces a new offence, based on Australian law and punishable by a maximum of ten years’ imprisonment, of entering or remaining in a “designated area”, such as territory which ISIS controls. The point of this new offence is to establish a simple ground on which to convict British citizens who pursue jihad abroad.
With 850 UK-linked persons thought to have travelled to Syria and Iraq to serve with ISIS, about 400 of whom have returned and only 40 of whom have been prosecuted, one can understand the Government’s concern. This new offence may be a useful addition to the law’s armoury. However, it is at best a partial response. Any UK citizen who has taken up arms with ISIS (or the Taleban) has served with a group that is engaged in combat with UK forces. Aiding the enemy in this way is a betrayal of our country. It should be recognised as treason and punished with life imprisonment.
This does not happen because our law of treason has become unworkable. In July, Policy Exchange published Aiding the Enemy: How and why to restore the law of treason. Written by two MPs, a barrister and me, the report recommended Parliament follow Australia’s example and legislate to make clear that any British citizen or person settled in the UK would be liable for life imprisonment if he or she helped a group which UK forces are fighting. The report was endorsed by Amber Rudd, the former home secretary, as well as by Lord Evans of Weardale, former director general of the Security Service, and by Sir Richard Walton, former head of the Counter Terrorism Command. The Bill before the Lords today provides an opportunity to make the law of treason effective once more.
Helping groups engaged in combat against UK forces should be prosecuted and punished as treason. The same is true for helping terrorist groups attack, or prepare to attack, the UK. Existing terrorism law routinely fails to recognise or to punish properly the wrong of betrayal – the wrong committed when a UK citizen, or someone else enjoying the Crown’s protection, betrays our country by aiding attacks on us all. The problem is particularly pronounced when the offending is at some distance from a particular attack, say when an offender provides logistical or intelligence support for others who carry out attacks. Our law punishes severely those caught in the act; it is much less severe with those who are complicit in attacks and who encourage and enable them. One glaring example is Anjem Choudary, sentenced to five and a half years imprisonment for encouraging support for ISIS. In swearing allegiance to ISIS and in recruiting solders to its cause Choudary betrayed our country. It is clearly wrong that he could not be prosecuted for treason and sentenced to life.
The Counter-Terrorism and Border Security Bill recognises the problem in part and if enacted will raise maximum sentences for four terrorism offences, from seven or ten years to fifteen years. However, the law as amended would still fail to recognise the wrong of betrayal and would thus fail to distinguish between terrorism in general, which may be wholly unconnected to the UK, and terrorism that involves an attack on the UK in particular – choosing to aid the latter is different in kind and should be recognised to be treason. Raising sentences in the way that the Bill does is thus both insufficient and disproportionate. It would be much better to restore the law of treason and sentence to life imprisonment those, like Choudary, who have betrayed their country, deserve severe punishment, and need to be incapacitated.
In the next few months, at least 80 convicted terrorists are set to be released. Choudary himself will be released on license later this month. The Bill proposes to end the automatic release for convicted terrorists who have served half their sentence. This may or may not be a good idea but again it is at best incomplete: postponing the release of offenders such as Choudary for two or three years would still be entirely inadequate in view of their wrongdoing and dangerousness. Much better to amend the Bill now before the House, introducing a new offence of treason which would vindicate the duty we all have, and have always had, not to betray our country. Indeed, there would be no unfairness in making the new offence retrospective, using it as a ground now to prosecute and sentence Choudary and others like him for their betrayal. Aiding the enemy has always been wrong and the difficulties of the ancient law are not a good reason to refrain now from punishing that wrong.
The Bill is not all about terrorism. It responds also to the threat posed by sovereign states, introducing new powers to stop, question, search, and detain persons at the border to determine whether they are or have been engaged in “hostile state activity”. The Bill’s recognition of hostile state action is important. However, Parliament should go further and make it unlawful for UK citizens, or others living in the UK, to help a hostile state to attack or prepare to attack the UK. In amending the Bill to restore a workable law of treason, Parliament would improve the Bill, responding appropriately and rationally to the true wrongfulness of aiding terrorist groups or hostile states.