4 Overall recommendations
100. 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.
101. 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.
102. However,
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.
103. If such
evidence exists, and is provided, to the satisfaction of both
Houses, we are satisfied that although this is an unusual exercise
of the power to make an urgent remedial order, it is appropriate
and justifiable to do so in the circumstances.
104. However,
we recommend that the Order be replaced with a new Order modifying
the provisions of the original Order in the ways specified in
this Report, because the Order in its current form does not go
far enough to remove the incompatibility identified by the European
Court of Human Rights in Gillan and therefore
risks giving rise to further breaches of Convention rights. We
recommend, in particular, that the Order should be modified so
as 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;
- Prevent the renewal of authorisations
other than on the basis of new or additional information or a
fresh assessment of the original intelligence that the threat
remains immediate and credible;
- Require prior judicial authorisation
of the availability of the power to stop and search without reasonable
suspicion; and
- Require authorisations to be
publicly notified once they have expired.
105. We
also recommend that, in view of concerns about the racially discriminatory
exercise of the previous power, the Code of Practice should be
strengthened in certain ways and the role of the independent reviewer
should also be bolstered in relation to this exceptional counter-terrorism
power in order to enhance political accountability for its exercise.
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