This article is taken from the February 2023 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.

“Treason doth never prosper: what’s the reason? For if it prosper, none dare call it treason.”

Between foreign Islamic State fighters and domestic terrorists, we do not live in an especially loyal age; and judging from a recent Lords’ debate, many of the country’s most distinguished lawyers are still loath to call this crime by its proper name.

The occasion was the committee stage of the National Security Bill, when Lord Bethell moved an amendment to insert a modernised offence of high treason which would extend it to attacks against the United Kingdom short of international armed conflicts. Originally included in the Bill, it had been dropped at the insistence of Lord Chancellor Raab, no doubt to make parliamentary time for his eccentric British Bill of Rights.

Their lordships gently savaged the proposal. Lord Carlile of Berriew KC said there was no need to create a new treason offence when all the conduct it covers is already illegal under other names. 

Lord Anderson of Ipswich KC added that although “betrayal is a regrettable fact of life”, it did not warrant special criminal punishment, citing the example of adultery (glossing over the Rump Parliament’s salutary, though short-lived, decision in 1650 to make it a capital crime).

Lord Hope of Craighead, formerly Britain’s second most senior judge, finished the proposal off by claiming the word “treason” on an indictment will inflame juries (as opposed to, one supposes, “murder” or “terrorism”). 

Faced with such united and learned opposition, the amendment was inevitably withdrawn.

Such legal antipathy toward treason is not new

Such legal antipathy toward treason is not new: the last treason trial in these islands took place in 1946 (not that of William Joyce as is commonly believed, but of a wretched SS petty officer, Thomas Haller Cooper). Since then, treasonous acts have been prosecuted as murder, terrorism, or breaches of the Official Secrets Act, but the law has stopped acknowledging the existence of traitors. The Law Commission recommended the abolition of treason as recently as 2010, the year the editors of Archbold, the standard text for criminal lawyers, expunged all discussion of the subject because new treason prosecutions were “unlikely in the extreme”.

The legal aversion to prosecuting treason or to modernize the relevant statutes has left a decidedly antiquarian set of laws on the statute books. In addition to the classic “levy war against our Lord the King in his realm” and “be adherent to the King’s Enemies”, it is high treason to kill the lord chancellor (but not the prime minister), to counterfeit the Great Seal (but only of Scotland), and to slander the sovereign as a “heretick, schismatick, tyrant, infidell, or usurper of the crown” (but only in Northern Ireland).

And there is of course the famous proscription against having intercourse with “the wife of the King’s eldest son and heir”, which Piers Morgan once attempted to invoke to have one of Diana’s lovers prosecuted. 

None of which is much good against domestic jihadis who blow up civilians after watching YouTube videos.

As Lord Anderson’s speech illustrated, many reject the idea of treason reform because they fundamentally view the notion of political loyalty, whether to king or to country, as essentially obsolete in the modern world, and therefore incapable of justifying a special set of crimes designed to maintain it.

The last Labour lord chancellor, Charlie Falconer, once stated this position even more bluntly when he told the BBC that treason no longer serves any useful purpose because “people might feel their strongest allegiance to be towards their religion or even, say, to an organisation like Greenpeace”, a view no doubt shared by many of those who view citizenship primarily in terms of the comparative length of non-EU passport queues at Continental airports.

But every coherent political community is based around the notion of reciprocity, whereby its members enjoy its protection in exchange for certain duties. 

The latter is often illustrated through the (mercifully sporadic) obligation to take up of arms in certain circumstances, but at a minimum it must include a promise to not violently destroy the community, nor to assist those who wage war against it.

This mutuality is not limited to citizens, but extends to aliens living lawfully within the community under its protection, which is why citizenship, contrary to popular belief, has never been a legal prerequisite for being a traitor at common law.

As an attack on the very continued existence of the polity, treason is not a crime against individuals, but the betrayal of the whole community. The severe, indeed barbaric punishments traditionally reserved to traitors reflect the special nature of the transgression — that betrayal which Blackstone described as the “highest civil crime”.

To abandon the idea of treason, whether by statute or through disuse, is to take a step toward that post-national future where a country is merely an agglomeration of people who happen to pay the same taxes to the same public utilities. 

Some might find this vision of the future appealing. The rest of us should fervently wish to have traitors in our midst once again.