UK considers reform of treason law, as Russia utilises legislation to persecute opposition

Polly BotsfordTuesday 15 November 2022

Image credit: Declaration of Guido Fawkes, executed for treason in London in 1606. With thanks to The National Archives, currently hosting a free exhibition, ‘Treason: People, Power & Plot’. https://www.nationalarchives.gov.uk/treason/

The UK government is considering whether to update its treason law, which has been in place for almost 700 years. There are concerns, however, that a modernised version of the Treason Act 1351 – an idea that has been on the agenda for some time – could do more harm than good.

Modernising the law of treason originally formed part of the UK government’s 2021 consultation on a new framework of laws under its National Security Bill, which is currently progressing through Parliament. The framework is a response to new threats from a range of ‘hostile states’ and organisations, such as state-backed sabotage, the spread of disinformation, foreign interference in the political system and cyber operations aimed at threatening the economy.

Treason reform was dropped from the final text of the National Security Bill when it was placed before Parliament in May on the grounds that updating it would be a huge task involving considerable resource, and the government was keen to get the Bill passed. But a Home Office spokesperson confirmed to Global Insight that the government is still ‘considering’ reform and is in conversation with the Law Commission about the possibility of them conducting a review.

The Treason Act 1351 makes it an offence to ‘compass or imagine the death of’ the monarch and his extended family or to ‘aid and comfort’ the monarch’s enemies. It has been modified and extended over its 670-year history into a much broader definition, with King Henry VIII extending ‘treason’ to include challenges to his new faith, the English protestant church, for example. But the original medieval law still stands.

One should be very vigilant when traditional liberal democracies introduce legislation similar to treason laws

Anne Ramberg
Co-Chair, IBA Human Rights Institute Council

The last time treason was deployed in the UK was in the trial and subsequent hanging of Lord Haw Haw in 1946, following his activities in support of Nazi Germany during the Second World War. Much more recently, the 2000s and 2010s have seen attacks and attempted attacks in – and on – the UK by radical Islamic militant groups supported by individuals who are also British citizens. A number of British citizens have also travelled abroad to fight with non-state organisations such as the Islamic State of Iraq and Syria (ISIS), where these organisations are engaged in conflicts with UK forces abroad or intent on attacks in the UK itself.

This is the backdrop to a paper published in 2018 by think-tank the Policy Exchange, in which two Members of Parliament, Tom Tugendhat and Khalid Mahmood, propose a new law of treason that would make it an offence, punishable with life imprisonment, to aid a state or organisation that’s attacking or preparing to attack the UK or UK forces in armed conflict. ‘Betraying one’s country […] is a terrible crime’, says the paper, which is entitled Aiding the Enemy. It argues that sentencing under existing terrorism laws has been ‘manifestly inadequate’ and that there are shortcomings and loopholes in those laws that treason could fill.

Richard Ekins, Professor of Law and Constitutional Government at St John’s College, Oxford, who co-authored the paper, tells Global Insight: ‘It has been acknowledged that there is a gap in the law here and we need legislation that is workable. This is not about requiring patriotism, it’s about the law clearly setting out that to assist a group in attacking the country of which you are a citizen is a crime.’ Other common law jurisdictions such as Australia, Canada and New Zealand also have modern versions of treason laws.

But there are concerns about reforming the law of treason, such as from the Independent Reviewer of Terrorism Legislation, Jonathan Hall KC. In a speech in 2019, Hall KC pointed out, for instance, that in order to prosecute an individual for aiding a hostile state or organisation, you have to label that state or organisation as such. Doing so could legitimise their cause and give them ‘special status and cachet’. By way of example, members of the IRA and other Irish republican groups were not prosecuted for treason for a similar reason, with Hall KC commenting that ‘it is not hard to see why the authorities would have wanted to avoid “state trials” for treason, pitting the British government against an official rebellion.’

Political expedience can also be an issue. In October, Russia showed how treason can be used as a means of oppression, bringing a charge of high treason against Vladimir Kara-Murza, an opposition politician, for publicly criticising the Russian authorities on the international stage. This follows the treason conviction of a former journalist, Ivan Safranov, for allegedly disclosing intelligence to foreign states, a charge he denied. According to TASS, its news agency, Russia recently amended its Criminal Code to include a new treason law to capture situations in which a citizen participates in an armed conflict that doesn’t support the interests of Russia.

‘Freedom of the press, freedom of expression and freedom of assembly are the first victims when democracy is in decline […] The censorship in different fields is often followed by attacks on the judiciary, clean elections and legislative constraints. This is obvious in Russia,’ says Anne Ramberg, Co-Chair of the IBA Human Rights Institute Council. ‘But one should be very vigilant when traditional liberal democracies introduce legislation similar to treason laws.’

Professor Ekins argues, however, that misuse of a law is not a reason not to have it. ‘Of course, accusations of treason can be abused and used to silence dissenters,’ he says. ‘But plenty of civilised states have treason laws. The best protection is to have good, workable legislation.’

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