2 Is the Order Necessary?
Introduction
18. The Government argues that a replacement power
to stop and search individuals and vehicles without reasonable
suspicion is operationally necessary; that there are compelling
reasons for introducing such a replacement power by remedial order
because the alternative ways of making the necessary change, by
further administrative guidance or primary legislation, are unsuitable;
and that the use of the urgent procedure is justified because
of the need for the power to be available to the police immediately.
19. Three questions therefore arise about whether
the Remedial Order is necessary:
(1) Is a counter-terrorism power to stop and
search without reasonable suspicion necessary?
(2) If so, is it necessary to introduce such
a power by remedial order rather than by further administrative
guidance or primary legislation?
(3) If so, is it necessary to use the urgent
remedial order procedure rather than the normal procedure?
20. We consider each of these questions in turn.
(1) Is a power to stop and
search without suspicion necessary?
THE HOME SECRETARY'S SUSPENSION OF
THE POWER
21. The Government first responded to the Gillan
judgment by the Home Secretary announcing to the House of Commons
in July 2010 new non-statutory guidance for the police, setting
out how the existing powers were to be operated in order to avoid
further breaches of Convention rights.[21]
The Home Secretary announced that the test for authorising the
availability of powers to stop and search without suspicion would
henceforth be whether such powers were "necessary" for
the prevention of terrorism, rather than merely "expedient".
Most importantly, the Home Secretary introduced a new suspicion
threshold: officers would only be able to stop and search individuals
and vehicles where they have "reasonable suspicion".
These were expressed to be interim guidelines, to last until the
completion of the Government's review of counter-terrorism and
security powers.
22. The effect of the Home Secretary's non-statutory
guidance was therefore to suspend the exercise of counter-terrorism
stop and search powers without reasonable suspicion, pending the
completion of the Government's Review of Counter-Terrorism and
Security Powers.
23. As we made clear in a letter to the Home Secretary
concerning the Gillan judgment, we
welcome the Government's swift and constructive response to the
Court's judgment.[22]
Providing interim administrative guidance about the use of a power
which has been found to be in breach of the ECHR, pending amendment
of the power by legislation, is a commendable approach to the
implementation of European Court of Human Rights judgments. It
helps to give swift effect to those judgments and so prevent repetitive
violations which are responsible for much of the backlog before
the European Court. The Home Secretary's interim guidelines to
the police have undoubtedly prevented further breaches of individuals'
right to respect for their private life pending Parliament's consideration
of a longer term solution.
24. This introduction
of what were, in effect, interim general measures constitutes
a significant step by the UK towards implementing the Interlaken
Declaration and Action Plan,[23]
which calls on states to commit themselves to ensuring that the
necessary measures are taken at national level to prevent further
similar violations, as well as ensuring that Parliaments are more
closely involved in decisions about implementation of Court judgments.
We look forward to this sensible and pragmatic approach to interim
measures being taken by the Government in other cases, where appropriate.
THE REVIEW OF COUNTER-TERRORISM AND
SECURITY POWERS
25. The Home Secretary's suspension of the counter-terrorism
power to stop and search without reasonable suspicion suggests
that, in July 2010, the Home Secretary was of the view that such
a power was not necessary. However, the suspension of the power
was only ever intended to be an interim measure, pending the completion
of the Government's review of counter-terrorism and security powers.
26. That review reported in January 2011.[24]
It took evidence on the question of whether a power to stop and
search without suspicion is necessary.[25]
It noted that opponents of the power questioned its necessity
in light of the fact that hundreds of thousands of stop and searches
under the power had not led to any convictions or even any arrests
for terrorism offences in Great Britain.[26]
The review acknowledges that this fact is "clearly relevant"
to whether the power continues to be necessary. But it also notes
that supporters of the power believe that it has been useful "because
of its deterrent and disruptive effect on terrorists and because
it can be used flexibly in a variety of counter-terrorism operations
and situations."
27. The report records that in the course of the
review, the police and others argued that there will continue
to be circumstances where there is an urgent operational need
for a stop and search power which does not require reasonable
(or any) suspicion:[27]
"For instance, the police may become aware of
an intended attack on a particular site or transport network,
but have no description of a suspect and no specific information
which could allow individual officers to form a reasonable suspicion
that particular individuals were terrorists and needed to be searched."
In such circumstances, the power of the police to
stop and search a person whom they reasonably suspect is a terrorist,
under s. 43 Terrorism Act 2000, could not be used. The Summary
of Responses to the Consultation records that there was "a
general acceptance" that a power to stop and search without
suspicion could be necessary in limited circumstances, for example
where there was intelligence that a terrorist attack was likely.[28]
28. The review considered whether the power to stop
and search without reasonable suspicion in s. 44 should be repealed
without replacement, but found the scenario of concern to the
police (above) to be not only credible but "arguably inevitable".[29]
It concluded that the other related powers available to the police
would not sufficiently address the gap left by repealing the power
to stop and search without suspicion, and that the absence of
any form of "no suspicion" terrorism stop and search
power would lead to an increase in the levels of risk. The review
therefore decided that a power to stop and search individuals
and vehicles without reasonable suspicion in exceptional circumstances
is "operationally justified."[30]
29. The review's conclusion was endorsed by Lord
Macdonald in his report overseeing the process of the review.[31]
He said that the review had uncovered a significant and understandable
concern that blanket abolition of without suspicion searches might
compromise public safety to an uacceptable degree.
"If, for example, the police received credible
intelligence of a plot to car bomb Parliament Square, it would
seem proportionate and reasonable to allow the police to carry
out random 'without suspicion' searches of cars in that location
for a limited period."
30. The review's conclusion that a power to stop
and search without reasonable suspicion continues to be necessary
is relied on by the Government in both the Required Information[32]
and the Explanatory Memorandum accompanying the Remedial Order.[33]
The review identified the need for such a power to be available
in the exceptional circumstances envisaged in the police's hypothetical
scenario in which they have intelligence about a planned terrorist
attack on a particular site or transport network but insufficient
information to conduct a stop and search of anyone on the basis
of reasonable suspicion.
31. We accept
the necessity of introducing a replacement stop and search power
which is exercisable without reasonable suspicion but only available
in tightly circumscribed circumstances. In our view the case for
having such a narrowly defined and exceptional power has been
made out in the review of counter-terrorism and security powers.
The necessity, in our view, is for a power to conduct random stop
and searches of people and vehicles in the exceptional circumstances
where credible intelligence is received about an imminent threat
to a specific location but that intelligence is not sufficiently
specific to give rise to reasonable suspicion about the identity
of the person or vehicle.
(2) Is it necessary to proceed
by way of remedial order?
32. The review of counter-terrorism powers recommended
that the power to stop and search without reasonable suspicion
in s. 44 of the Terrorism Act 2000 should be repealed and replaced
with a new power, but that consideration should be given to whether
the replacement provisions can be implemented more quickly than
would be possible through the Protection of Freedoms Bill in order
to "fill the potential operational gap."
33. 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 more narrowly defined and subject
to more legal safeguards than the current power.[34]
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.
34. The Government explains its justification for
proceeding by way of a remedial order, rather than further administrative
guidance or primary legislation, in the "Required Information"
published with the Order:
"10. It is generally desirable for amendments
to primary legislation to be made by way of a Bill. The Government
has taken steps to do this through the Protection of Freedoms
Bill which was introduced on 11 February and received its second
reading on 1 March 2011. This Bill includes provisions to repeal
sections 44 to 47 of the 2000 Act and to replace them with a new
stop and search power which is far more circumscribed and which
is compatible with Convention rights. These provisions are unlikely,
however, to come into force until early 2012 when the Protection
of Freedoms Bill is currently expected to receive Royal Assent.
As an alternative, the Secretary of State has considered whether
to use a short fast-track Bill to amend the 2000 Act. There is,
however, no available space in the current legislative programme
for such a Bill.
11. The Government also considered, as an alternative
to using a remedial order, whether the Home Secretary's interim
guidance of 8 July 2010 could be revised to allow the police to
use the counter-terrorism stop and search powers in sections 44
to 46 of the 2000 Act again (without reasonable suspicion) but
in only circumscribed circumstances. This could have provided
the police with a stop and search power to fill the operational
gap quickly. However, it was considered that attempting to operate
existing powers under sections 44 to 46 of the 2000 Act in a more
restricted way than provided for by the legislation would be unsatisfactory,
including for the following reasons:
a) it would not provide the legal certainty and
clarity of legislative amendment;
b) the full range of changes considered necessary
to make the existing powers Convention-compatible could not be
achieved without legislative amendment; and
c) further (non-statutory) guidelines would still
not implement the ECtHR's judgment.
12. In summary, there is a need to amend the legislative
powers of stop and search in sections 44 to 46 of the 2000 Act
to prevent unlawful interference with individuals' rights. Although
the Home Secretary suspended the practical use of the powers in
sections 44 to 46 without reasonable suspicion, these provisions
remain in force and it remains necessary to remove this incompatibility.
The counter-terrorism review identified an urgent need, for national
security reasons, to provide an ECHR-compatible replacement for
these powers. There is a lack of alternative suitable legislative
vehicles for revising the counter-terrorism stop and search powers
quickly enough for operational requirements (in particular, the
Protection of Freedoms Bill is not expected to receive Royal Assent
until early 2012 and there is no space in the legislative programme
for a stand-alone fast-track bill). The non-legislative alternative
is unsuitable. In view of this, the Home Secretary considers that
there are compelling reasons for proceeding under section 10 of
the HRA to make a remedial order to make such amendments she considers
necessary to remove the incompatibility identified in Gillan."
35. We
agree with the Government that there are compelling reasons for
using the remedial order procedure to introduce the replacement
power to stop and search without reasonable suspicion. We accept
that awaiting the enactment of the Protection of Freedoms Bill
would ensure that the operational gap continues for another year,
until that Bill receives Royal Assent. We also accept the Government's
reasons for proceeding by way of a remedial order rather than
altering the administrative guidance that has already been given
about the current law. We would add to those reasons the additional
consideration that a remedial order provides much greater opportunity
for parliamentary scrutiny of the detail of the replacement power
than the mere announcement of new administrative guidance.
(3) Is it necessary to use the
the urgent procedure?
36. The Government's reason for proceeding by way
of an urgent procedure remedial order (as opposed to a normal
procedure remedial order) is also explained in the Required Information.
In short, on the basis of advice from the police the Home Secretary
considers that for national security reasons it is necessary for
the police to have immediately available a power to stop and search
without reasonable suspicion:[35]
"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."
37. However, the Home Office memoranda do not go
beyond this general assertion to give any examples of the sorts
of circumstances in which this operational gap has arisen in practice.
We therefore wrote to the Metropolitan Police and ACPO on 6 April
2011 to ask what evidence they are able to provide, without disclosing
sensitive intelligence information, in support of the Home Secretary's
statement. In particular, to help us understand the nature of
any operational gap in counter-terrorism powers which had been
opened up by the suspension of s. 44, we asked if they could provide
any specific examples of the sorts of circumstances which have
arisen since the suspension of the powers in which the availability
of the power to stop and search without reasonable suspicion was
considered necessary to prevent an act of terrorism.
38. The Metropolitan Police response refers to two
major events for which a s. 44 authorisation was required "in
order to provide security, safety and reassurance": the New
Years Eve celebrations and the New Year's Day parades in central
London. A s. 44 authorisation to stop and search vehicles and
people in vehicles was given on the basis of the assessed threat
for a specific area over a short period of time.[36]
However, "the operational feedback from the Gold Commander
for the New Year's event stated that the actual authority, area
defined and tactics that this restricted power afforded him, did
not provide the required coverage, operational flexibility or
the ability to search people who attended the event."
39. The letter also promised to "detail"
the operational gaps in a "Confidential Annexe". According
to the letter, "since the beginning of last year several
working/focus groups of practitioners and security experts have
been assessing the risks involved in not having section 44 powers."
The operational gaps identified by that process have now been
identified in the Confidential Annexe which has been received
from the Metropolitan Police, but which we are unable to publish
with this Report. In our view, the Confidential Annexe raises
an important issue about operational capability which requires
careful and detailed scrutiny. It identifies one potential operational
difficulty in particular which raises a number of questions about
what other powers already exist, how effective they are in practice
and what plans there might be to change those powers. These are
all questions which, in our view, should be subjected to careful
and detailed scrutiny.
40. However, in the absence of more detailed information
about the sorts of operational gaps which have already arisen
because of the suspension of the current powers, it is difficult
for Parliament to reach a view on whether the case for proceeding
by way of an urgent remedial order has been made out. All that
Parliament has is the Home Secretary's general assertion of the
necessity for the immediate availability of the power, based on
the general assertion of the police that they need the power.
Given that in July 2010 the Home Secretary was content to suspend
the power to stop and search without reasonable suspicion, we
consider that Parliament is entitled to a more detailed explanation
of what has changed since that date which makes the immediate
availability of the power necessary as a matter of national security.
41. We recommend
that the Government provide Parliament with more detailed evidence
of the sorts of circumstances in which the police have experienced
the existence of an operational gap in the absence of a power
to stop and search without reasonable suspicion since that power
was suspended. In the absence of detailed scrutiny of such evidence,
it is difficult both for us and for Parliament to reach a view
as to the appropriateness of proceeding by urgent remedial order,
rather than by the normal procedure.
42. The Shadow Minister for Immigration and Counter-Terrorism,
Gerry Sutcliffe MP, queries the Government's justification for
using the urgent procedure for a remedial order. He asks what
is the Government's basis for using an urgent remedial order rather
than altering the non-statutory guidance which the Home Secretary
has already given. It is that guidance, he argues, that has resulted
in the gap in counter-terrorism provision. He questions whether
in these circumstances it is a misuse of the urgent remedial order
procedure to bring legislation into force, without debate, when
the urgency stems not from the need to give effect to the judgment
but to fill an operational gap which, he argues, was only created
by the Minister's over-reaction to the judgment in the first place.
The Shadow Minister suggests that the advice the Government received
from the police and the security services prior to the Home Secretary's
guidance in July 2010 should be made available to us so that we
can see whether or not she was advised that the guidance suspending
the power to stop and search without reasonable suspicion was
a mistake.
43. The Home Secretary herself acknowledges that
this is a somewhat unusual exercise of the power to introduce
an urgent remedial order:[37]
the urgency resides not in the need to prevent further violations
of the rights of significant numbers of people (that has already
been achieved by the Home Secretary's non-statutory guidance),
but in the need to plug an operational gap which has only been
created in the first place by the Home Secretary's guidance which,
by removing the power to stop and search without reasonable suspicion
altogether, arguably went further than was necessary to remove
the incompatibility.
44. We accept the Government's argument that the
urgent procedure provided by the Human Rights Act can properly
be used where the urgency of the matter arises not because of
the need to stop individuals' Convention rights being infringed,
but because the absence of legally certain powers to stop and
search without suspicion undermines the police's ability to protect
the public.
45. We draw
this unusual exercise of the power to use the urgent procedure
to the attention of both Houses. If, however, Parliament is satisfied
that the urgent operational need for a power to stop and search
without reasonable suspicion is made out on the evidence, we find
that the Government's reasons for proceeding by way of urgent
remedial order, rather than the normal procedure, constitute a
satisfactory justification for such an unusual exercise of the
power. If the Government is able to demonstrate the urgent necessity
of the power, we would therefore conclude that the Government
is justified and acting intra vires in proceeding
by the urgent procedure.
21 Home Secretary's statement to the House of Commons,
HC Deb 8 July 2010 col. 540. Back
22
Letter from the Chair to the Home Secretary dated 9 September
2010,. http://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/human-rights-judgments/gillan-and-quinton-v-united-kingdom-/ Back
23
See Fifteenth Report of Session 2009-10, Enhancing Parliament's
role in relation to human rights judgments, HL 85/HC 455,
paras 5-12. Back
24
Review of Counter-Terrorism and Security Powers: Review Findings
and Recommendations, Cm 8004 (January 2011). Back
25
Review, pp 15-19. Back
26
Review, p 16, para 4(b) and p 17 para 9. Back
27
Review, p 16, para 5. Back
28
Review of Counter-Terrorism and Security Powers: Summary of
Responses to the Consultation, Cm 8005, p 8. Back
29
Review, p 17, para 9. Back
30
Review, p 18, para 15. Back
31
Review of Counter-Terrorism and Security Powers: A Report by
Lord Macdonald of River Glaven QC, Cm 8003, pp 4-5. Back
32
Required Information, para 8. Back
33
Explanatory Memorandum, paras 7.2-7.3. Back
34
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). Back
35
Required Information, para16. Back
36
The Home Secretary's statement suspending the powers explicitly
envisaged that s. 44 authorisations could still be given in relation
to searches of vehicles, although only where "necessary"
and only to authorise stop and searches on the basis of reasonable
suspicion. Back
37
Letter from the Rt Hon Baroness Neville-Jones, 2 March 2011, Ev
36-37 Back
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