Terrorism Act 2000 (Remedial) Order 2011

Lord Henley Excerpts

Wednesday 5th October 2011 Lords Chamber

Moved By

[Lord Henley]

That the draft order laid before the House on 17 March be approved.

Relevant Documents: 14th and 17th Reports from the Joint Committee on Human Rights.

[The Minister of State, Home Office (Lord Henley)]

My Lords, this order is made under the Human Rights Act 1998 and replaces the stop-and-search powers found in Sections 44 to 47 of the Terrorism Act 2000, often referred to as the Section 44 powers. These powers allowed police constables to stop and search individuals at a time and in a place authorised by a chief officer and search for articles which could be used in connection with terrorism, whether or not the police suspected the presence of such articles. The European Court of Human Rights found that the powers were not in accordance with the law. That ruling became final on 28 June 2010 and the Home Secretary made a Statement in another place on 8 July, stating that the use of the powers without reasonable suspicion would be suspended pending a review. The powers were subsequently reviewed as part of the Government’s wider review of counterterrorism powers. As a result, the Home Secretary announced that Section 44 would be repealed and replaced with a significantly circumscribed power. The Government have brought forward these proposed changes in the Protection of Freedoms Bill. However, the review also recommended that consideration should be given to whether the new powers should be made available more quickly than the Bill will allow. The remedial order before us is the result. The order has been made under the urgency procedure in Schedule 2 to the Human Rights Act 1998. The order will lapse on the passage of the similar powers currently under consideration in the Protection of Freedoms Bill in another place.

It is apparent from the European court’s ruling that there is an incompatibility to address. It is also the Government’s view, on the basis of operational advice, that given the very serious circumstances in which the new powers might be used, it was necessary to make them available using the emergency procedure which allowed the change in the law to take effect immediately. It is a fairer and more focused power with significantly stronger safeguards. It provides the police with what they need while ensuring that there are robust safeguards to prevent misuse.

The new powers inserted as new Section 47A into the Terrorism Act 2000 require that an officer reasonably suspects that an act of terrorism will take place and considers that the powers are necessary to prevent such an act. This is a significantly higher threshold than in the old Section 44 power. Furthermore, an authorisation under new Section 47A can cover only a geographical area and a period of time necessary to address the threat. The maximum period of authorisation has been reduced from 28 days to 14 days. The purpose of the stop and search has also been tightened so that the use of the powers is more closely aligned with the particular threat. In addition to these changes, there is a robust statutory code of practice. This sets out the detailed requirements for the authorisation and exercise of the powers, prohibits the continuous renewal of authorisations and requires effective monitoring and community engagement.

This order provides police with the tools they need to address a serious terrorist threat but represents a clean break from the years of misuse of the disproportionate and discredited Section 44 powers. I commend the order to the House.

[Baroness Hamwee]

My Lords, it has taken a little time for this order to reach us—although it is within the 120 days—and I wonder why that is so. It would have been good to have considered it rather earlier after the order came into effect. However, it means that we have had two helpful reports from the Joint Committee on Human Rights and I have also found helpful briefing that we received within the past two or three days from the Equality and Human Rights Commission.

As the Minister said, this is a curtain-raiser for the Protection of Freedoms Bill. I declare an interest which, when I mentioned it on a previous occasion, I discovered I shared with a surprisingly large number of Members of this House—I was stopped and searched under Section 44 by, in fact, the MoD rather than the Metropolitan Police. I was driving past the Ministry of Defence at the time. That was a random stop and search, although I have to say that I thought, and still think, it is very likely that they needed a middle-aged white woman to tick that box. Actually, they bagged two Peers because I was giving a lift to another, and they found a report from the Committee on Standards in Public Life in my boot—so there was nothing much to trouble them in all this. I was more interested than offended.

I support the order but share some of the concerns expressed by the JCHR. It used the term “unease”—I thought that that was a good one—about the Government’s assertion of necessity without being prepared to provide concrete evidence in support of alleged need. I am using shorthand, but the numbers in the House have reduced and those who are here will know what I am talking about. I am also concerned about what seems to be some confusion between “reasonable suspicion” and “reasonable belief”. The JCHR could not have known that we would debate this matter on the same day as TPIMs, but it made that connection. The JCHR made the point that “reasonable” does not appear regarding the authorising officer’s consideration of necessity for and proportionality of authorisation. When we come to the Bill, which will be amendable, perhaps we can look at the precise terms of the new Section 47.

I take the point that has also been made that placing elements of the code of practice into the legislation—the elements that restrict the use of the powers—would be desirable. It would mean greater clarity, enable breaches to be challenged and make checks on the use of the powers legally binding. There is also the point that we may need to consider further the relationship between these powers and the right to peaceful protest.

Of course I welcome the code and I note—particularly given my personal history—that the selection of individuals and vehicles at random must be within the parameters set out within the authorisation. Can the Minister give a reaction on behalf of the Government to the recommendation made by the independent reviewer of terrorism in his report of last July, at paragraph 8.39, on the revision of the code of practice to introduce full and proper guidance on the exercise of the officer’s discretion to stop and search? It is a longer paragraph than that but I am sure that the Minister will be familiar with it. The JCHR recommended prior judicial authorisation of the power to stop and search without reasonable suspicion. The Minister will not be surprised, as I said in the previous debate, that I am with the committee on that. However, I support the order.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, the noble Lord, Lord Henley, will be glad to know that, unlike in previous debates, he is receiving unanimous support from noble Lords tonight for the remedial order, which I believe to be an entirely reasonable and proportionate response. I echo the comment of the noble Baroness, Lady Hamwee, about the timing. Clearly, it is within the due time. I agreed, through the usual channels, that we would have this debate after the Second Reading. On reflection, it is not sensible to have such a debate at this time. Many noble Lords who have spoken on Second Reading would have liked to have taken part in these deliberations as well. We might learn from that for the future—perhaps when we potentially come to annual debates on the previous legislation; we shall see.

I refer the noble Lord back to the point raised by the noble Baroness, Lady Hamwee, about the two reports of the Joint Committee. He will know that in the first report, the Select Committee asked the Government to provide Parliament with more detailed evidence of the set of circumstances in which the police have experienced the existence of an operational gap in the absence of a power to stop and search. I thought that that was a reasonable request by the Select Committee. The committee’s second report expresses muted disappointment that the Home Secretary had not accepted any of its recommendations. However, the committee goes on to say that, none the less, it thinks that the Government should find a way to tell Parliament more about the undisclosable reasons for their belief that there is a significant operational gap in the police's counterterrorism powers.

I am not being naive here. I well understand the issue for the Government: there are circumstances where it is difficult to give that information. I hope that, none the less, the noble Lord will see whether it might be possible to provide some information as a follow-up to the debate. The Select Committee has put its finger on an important point.

However, I do not intend to repeat the comments made by other noble Lords in the debate. I very much support them. We support the remedial order and look forward to the noble Lord's response.

[Lord Henley]

My Lords, following the remarks of the noble Lord, Lord Hunt of Kings Heath, I am very glad to see that unity has broken out, not only among the Labour Party but throughout the House.

[Lord Hunt of Kings Heath]

I am not going to let that go. I had the opportunity to look at the noble Lord’s Benches during the debate. I knew I was on a roll when the noble Lord, Lord Tebbit, was nodding while I was speaking in my opening remarks. The Minister was not able to see that. Then I was struck by the absence behind the Minister. There were plenty of Lib Dems there, but it did not seem to me that he was getting much support.

[Lord Henley]

My Lords, I think I got a reasonable amount of support; I am not sure that the noble Lord got quite as much; but we will leave it there.

I shall just respond to a few points briefly. First, on the question from the noble Baroness, Lady Hamwee, and the noble Lord, Lord Hunt, as to why it took so long, I understand that we have 120 days to respond. It was explained to me how the 120 days are counted, and I have to say that I could not quite understand it, but I am told that we are within those 120 days by a matter of five days or so. The important thing is that the draft order had to be laid for 60 days to start with, so that is half the time gone, to allow representations to be made. The remaining time was to allow those representations, including the report of the JCHR, to be properly considered. I am also grateful that my noble friend Lady Hamwee and others welcomed the code, but obviously have some concerns about it. I think that my colleague in the Home Office, James Brokenshire, in his response to the JCHR’s second report has made it clear that we will consider whether the code of practice, proposed new Section 47A or the test of its use could be amended through the Protection of Freedoms Bill when we get to it in due course. Obviously this matter can be considered by the department and there will be a chance for the House to consider it when we deal with the Bill.

I can say to the noble Lord, Lord Dubs, that the code refers only to random searches in the context of specific intelligence-based authorisation. Again, as I said, I am happy to look at the guidance further to ensure that this is clear for the police. My noble friend Lord Carlile stressed that Section 44 had been overused, misused and abused. That is a succinct way of saying what the problem was and I am grateful for the support that I have had from all sides of the House for its removal and replacement with proposed new Section 47A. Obviously we can look at this again during the passage of the Protection of Freedoms Bill.

There was a final question from my noble friend Lady Hamwee on paragraph 8.39 of the report of the independent reviewer of terrorism last July. I have to admit that it is not exactly at my fingertips at the moment and I hope that my noble friend will be happy if I write to her in due course. I promise to do that as soon as possible.

Motion agreed.