Terrorism Act 2000 (Remedial) Order 2011

Baroness Hamwee Excerpts

Wednesday 5th October 2011 Lords Chamber

[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 As a result, the Home Secretary announced that Section 44 would be repealed and replaced with a significantly circumscribed power.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.

[Lord Carlile of Berriew]

My Lords, on this occasion I feel able to support the Government’s proposals unequivocally and without demur. During my time as independent reviewer of terrorism legislation I saw—and I mean saw with my own eyes—Section 44 being overused, misused and occasionally abused. It produced very few, if any, results in terms of counterterrorism intelligence or information, and its passing is not mourned.

The problem was that there was no requirement for reasonable suspicion and it was treated as a random power to stop and search. I had not heard before this evening that my noble friend Lady Hamwee had been stopped and searched. I recall the noble Lord, Lord West, revealing that he had been stopped and searched, and he told me colourfully of the incident.

The passing of Section 44, and the Government’s speedy action in preventing its use, has been welcome, but there was always a gap to be filled as a result. There are going to be events—the Olympic Games are an obvious example but there may be many others—in which there will be reasonably robust intelligence that gives rise to a reasonable suspicion that a terrorism act will take place. It is important to allow the police to protect the public at such events by giving them a power to stop and search. It is not a random power and it is not expressed in this order as a random power. I agree with my noble friend that it is desirable that police officers who find this kind of power quite difficult to exercise, particularly if they have come from a different part of the country to carry out crowd control duty, should have as much guidance and as good briefings as possible before they are placed on duty with this power in their hands.

I have some experience of the reviewing of the authorisations which, as the Minister reminded us, used to be for 28 days under Section 44 in geographical areas. During my time as independent reviewer a new look was taken at these authorisations, and greater demands were rightly placed on chief officers to ensure that the authorisations were not simply pro formas but that reasons were given. I hope that the same sort of discipline will apply to authorisations following approval of this order.

I know that the civil servants in the Office for Security and Counter-Terrorism who scrutinise the applications now have a great deal of experience, which they apply very well in that scrutiny. I therefore believe that as a result of this order we have replaced Section 44 with something that is better, necessary and properly limited in scope.