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Stop and Search, terrorism

Evidence: Replacement Power to Stop and Search without Reasonable Suspicion

5 April 2011

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On 17 March 2010, the Government made an urgent Remedial Order which introduces, with immediate effect, a new power to stop and search vehicles or individuals without reasonable suspicion for counter-terrorism purposes

[1] The Order has been made in response to the judgment of the European Court of Human Rights in Gillan and Quinton v UK, in which the current counter-terrorism powers to stop and search without reasonable suspicion[2] were found to be in breach of the right to respect for private life in Article 8 of the European Convention on Human Rights because they are “neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse.”

The Government responded to the Gillan judgment by the Home Secretary announcing in July 2010 new non-statutory guidance setting out how the existing powers were to be operated in order to avoid further breaches of Convention rights.[1] The non-statutory guidance effectively suspends the exercise of counter-terrorism stop and search powers without reasonable suspicion. However, the Government’s review of counter-terrorism and security powers subsequently identified “an urgent need” for a counter-terrorism stop and search power that can be exercised without reasonable suspicion in tightly circumscribed circumstances. The Government also says that the experience of the police since the suspension of the current powers in July last year has indicated that there is a clear operational gap in responding to specific threat scenarios which cannot be met by other, existing powers.

Provisions in the Protection of Freedoms Bill, currently before Parliament, are designed to fill this operational gap by providing a replacement power to stop and search without reasonable suspicion which is narrower and subject to more legal safeguards than the current power.[1] However, the Government says that the urgent need to fill the operational gap in the interests of national security makes it necessary to bring those provisions into force immediately, and that is why it has made the urgent Remedial Order.

The Joint Committee on Human Rights is required by its terms of reference to report to Parliament on any Remedial Order made under the Human Rights Act. The Committee proposes to report on this urgent Remedial Order by the end of May, in time to be considered by both Houses before the Home Secretary is required to make a statement to both Houses in mid-June.

The JCHR invites submissions by 3 May 2011 from interested groups and individuals on any aspect of the urgent Remedial Order, including in particular on the following issues:

· What evidence is there of the existence of a clear operational gap in counter-terrorism powers which requires the immediate availability of a replacement power to stop and search without reasonable suspicion?

· Is the replacement power to stop and search without reasonable suspicion sufficiently tightly circumscribed? In particular:

· Should there be a requirement that the authorizing officer have a “reasonable belief” as to the necessity of the three matters specified in new s. 43B(1)(b)(i)-(iii) Terrorism Act 2000?

· Should the geographical area or place to which an authorization applies be more specifically defined?

· Should the duration of an authorization be more strictly defined?

· Should the legislation expressly prevent the giving of a new authorization other than on the basis of new or additional information?

· Is the replacement power to stop and search without reasonable suspicion subject to sufficient legal safeguards against possible abuse? In particular:

· Should there be prior judicial (as opposed to executive) authorization of the availability of the power to stop and search without reasonable suspicion, with an urgent procedure for police authorization subject to judicial authorization within 48 hours?

· Should there be a requirement that authorizations be publicly notified?

· Does the Code of Practice contain any safeguards which ought to be on the face of the legislation?

· Should the Code of Practice contain any additional safeguards?

Notes

Remedial Orders are secondary legislation made under the Human Rights Act 1998. They are used to remove incompatibilities with the European Convention of Human Rights (ECHR) in primary legislation identified by either domestic courts or the European Court of Human Rights (ECtHR).

A copy of the submission should be sent by e-mail to jchr@parliament.uk and marked “Stop and search Remedial Order”. An additional paper copy should be sent to: Greta Piacquadio, Joint Committee on Human Rights, 7 Millbank, London SW1A 0AA.
It would be helpful, for Data Protection purposes, if individuals submitting written evidence send their contact details separately in a covering letter. You should be aware that there may be circumstances in which the Joint Committee on Human Rights will be required to communicate information to third parties on request, in order to comply with its obligations under the Freedom of Information Act 2000.
View guidance on giving evidence to Select Committees.

Please also note that:

  • Material already published elsewhere should not form the basis of a submission, but may be referred to within a proposed memorandum, in which case a hard copy of the published work should be included.
  • Evidence becomes the property of the Committee, and may be printed, placed on the Internet or circulated by the Committee at any stage. You may publicise or publish your evidence yourself, but in doing so you must indicate that it was prepared for the Committee. Evidence published other than under the authority of the Committee does not attract parliamentary privilege. If your evidence is not printed, it will in due course be made available to the public in the Parliamentary Archives.
  • All communications to the Committee about the inquiry should be addressed through the clerk or the Chairman of the Committee, whether or not they are intended to constitute formal evidence to the Committee.

[1] Terrorism Act 2000 (Remedial) Order 2011 (SI 2011/631).

[2] In sections 44-46 of the Terrorism Act 2000.

[3] Home Secretary’s statement to the House of Commons, 8 July 2010.

[4] Protection of Freedoms Bill, clauses 58 and 60 and Schedule 5 (repealing sections 44-47 Terrorism Act 2000 and inserting a new section 43B and Schedule 6B to the Terrorism act 2000 providing for the replacement power).