Conclusions and recommendations
2 Is the Order necessary?
1. We
welcome the Government's swift and constructive response to the
Court's judgment. 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.
(Paragraph 23)
2. 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, 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.
(Paragraph 24)
3. 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. (Paragraph 31)
4. 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. (Paragraph
35)
5. 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. (Paragraph
41)
6. 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. (Paragraph 45)
3 Does the Order remove the incompatibility?
7. In
our view, a very tightly circumscribed power with sufficiently
robust safeguards against abuse is not inherently incompatible
with Convention rights, provided its definition and safeguards
ensure that it is confined to the exceptional circumstances in
which such a power is shown to be needed in order to prevent a
real and immediate risk of terrorist attack. (Paragraph 55)
8. We
consider that expressly requiring that the authorising officer's
view of necessity be reasonable, and that those reasons be given,
will both concentrate minds and facilitate effective judicial
control of the authorisation process. We therefore recommend that
the Order should be modified so as to include express requirements
on the face of the Order that the authorising officer:
(i) have a "reasonable belief" as to the
necessity of the three matters specified in new s. 47A(1)(b)(i)-(iii)
Terrorism Act 2000; and
(ii) provide an explanation to the Secretary of State
(or to the court if the Order is amended to provide for prior
judicial authorisation) as to why the powers are necessary and
appropriate and why other measures are regarded as inadequate.
(Paragraph 67)
9. We
have given careful consideration to whether the geographical area
or place to which an authorization applies should be more specifically
defined on the face of the Order and, if so, what that limit should
be. We have concluded that the combination of the tighter definitions
and stronger safeguards that we are recommending, together with
the clear guidance in the Code of Practice, makes it unnecessary
to define a geographical limit on the face of the Order. (Paragraph
71)
10. We
welcome the stricter limit on the duration of an authorisation
under the Order. We think that the power to stop and search without
reasonable suspicion should be a wholly exceptional power which
is only available where there is an imminent threat of terrorist
attack, and this requires the duration of an authorisation to
be as short as possible. We have therefore considered whether
the duration of an authorization should be even more strictly
defined in the Order, but we do not consider this to be necessary
if our recommendation below concerning the renewal of authorisations
is accepted. (Paragraph 74)
11. We
recommend that the Order should be modified so as to provide for
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. (Paragraph 87)
12. We
recommend that the Code of Practice should contain stronger recording
requirements in order to facilitate monitoring and supervision
of the use of the replacement power to stop and search without
suspicion. We also recommend that the authorising officer should
be obliged to comply with the Code of Practice, as well as the
individual officers exercising the power to stop and search. (Paragraph
90)
13. We
recommend that the Order should be amended to include a requirement
that authorisations be publicly notified when they have expired,
so far as consistent with the protection of intelligence sources.
(Paragraph 93)
14. We
recommend that the Independent Reviewer of Terrorism legislation
should have the power to report to Parliament on the exercise
of this power on an ad hoc basis, and not be confined to reporting
annually as part of his report on counter-terrorism powers generally.
(Paragraph 95)
15. We
draw this defective drafting to the attention of each House and
anticipate that it will be corrected by the Secretary of State
modifying the Order. (Paragraph 99)
4 Overall recommendations
16. 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. (Paragraph
100)
17. 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. (Paragraph
101)
18. 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. (Paragraph
102)
19. 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. (Paragraph
103)
20. 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. (Paragraph104)
21. 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.
(Paragraph 105)
| 
