Terrorism Act 2000 (Remedial) Order 2011

Lord Hunt of Kings Heath Excerpts

Wednesday 5th October 2011 Lords Chamber

[Lord Dubs]

My Lords, we all know about the sensitivity of stop and search, and any improvement in the way that it is carried out—as is represented by this remedial order—is all to the good. However, I have one or two questions based upon my membership of the Joint Committee on Human Rights. The noble Lord, Lord Carlile, said that the searches would not be random. Am I right in thinking that in the code of practice there are references to random searches? The JCHR was anxious that those references be removed and that the code of practice be devised so that the stop could be,

“justified by the precise nature of the intelligence about the threat”.

Rather than the searches being random there would have to be some intelligence because the order would clearly not be applied unless there was some background knowledge of this sort. It would be desirable to remove the word “random” from the code of practice.

In another report of the JCHR, we suggested that the code of practice be modified to:

“Require the authorising officer to have a reasonable basis for his belief as to the necessity of the authorisation and to provide an explanation of those reasons”.

These would not be large changes, but I wonder whether we might urge that the code of practice be looked at again. Police officers need all the guidance that they possibly can have in dealing with very sensitive situations. We all know that certain communities will feel that they are more targeted than others—notwithstanding the experience of the noble Baroness—and I should have thought that we ought to look again at the code of practice to make sure that it reflects exactly what we want it to reflect and gives our police officers on the street the maximum support for the way they behave.

[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.