Written Evidence
1. Letter to the Committee Chair, from Baroness
Neville-Jones, Minister of State for Security and Counter-Terrorism,
Home Office, 2 March 2011
As you will be aware, the Government's recent review
of counter terrorism and security powers recommended the replacement
of Sections 44 to 47 of the Terrorism Act 2000 with a severely
circumscribed stop and search power exercisable without reasonable
suspicion which was much more targeted and compliant with Convention
rights in the light of the European Court of Human Rights' judgment
in Gillan and Quinton. That recommendation is reflected
in the clauses on stop and search included in the Protection of
Freedoms Bill which was introduced on 11 February.
In order to fill the current operational gap in 'no
suspicion' stop and search terrorism powers, the review also recommended
that consideration be given to whether the replacement provisions
could be implemented more quickly than would be the case through
the Protection of Freedoms Bill.
We have been considering this issue in the light
of the current threat environment. The Prime Minister made clear
in his New Year address that the threat from terrorism was as
serious as it ever has been. This remains the case. The clear
police advice is that there is an operational gap in respect of
their ability to use "no suspicion" stop and search
powers in exceptional circumstances where they suspect that an
act of terrorism will take place and reasonable suspicion powers
are not sufficient to address that threat. The police are concerned
that waiting for the provisions in the Protection of Freedoms
Bill to be commenced will mean that they are not able to effectively
protect the public from the risk of terrorism in the meantime.
When I gave evidence to your Committee on 8 February,
I was asked whether the Government intended to make a legislative
change to Section 44 by way of a remedial order. At the time I
said that I expected the Government would make a decision extremely
shortly. We have considered how best to close the operational
gap and consider that there are compelling reasons for proceeding
under section 10 of the Human Rights Act 1998 to make a Remedial
Order to make immediate changes to the primary legislation. The
Home Secretary informed the House of this decision yesterday in
her opening speech in the 2nd Reading of the Protection
of Freedoms Bill.
Such an order would be temporary however, and the
provisions concerning these powers would remain in the Protection
of Freedoms Bill to ensure that Parliament has the opportunity
to fully scrutinise them by means of primary legislation. The
remedial order would then be repealed on commencement of the Protection
of Freedoms Bill.
A remedial order that replaces sections 44 to 47
with Convention-compatible powers would remove the incompatibility
of the Terrorism Act 2000 with Convention rights. Whilst the Home
Secretary's statement of 8 July put an end to the possibility
of these powers being used in a manner which is incompatible with
Convention rights, sections 44 to 47 remain on the statute book.
The Home Secretary's guidelines on 8 July do not therefore represent
an implementation of the Gillan judgment which can only
be accomplished by amending the primary legislation.
Given the operational urgency, we intend to use the
urgency procedure provided by the Human Rights Act to make the
remedial order. The police assess that they need the powers to
be available now. Home Office Ministers have concluded on the
basis of advice that the availability of these powers (on a revised
basis) as soon as possible is in the interests of national security,
in particular the protection of the public from terrorism. In
taking this decision, we recognise that there are different interpretations
of the legislation as to what factors can have a bearing on the
Secretary of State's view that the 'urgency of the matter' requires
the order to be made without advance Parliamentary approval and
the other procedural requirements normally attached to making
a remedial order.
I am aware that previous JCHRs have expressed the
view that the urgency can only relate to the need to stop individuals'
Convention rights being infringed. While we accept that this is
a key factor, 'urgency' arises in this instance because the absence
of legally certain 'no suspicion' powers
2. Letter from the Committee Chair, to Sir Hugh
Orde, President of the Association of Chief Police Officers (ACPO),
6 April 2011
The Joint Committee on Human Rights is scrutinising
this urgent Remedial Order concerning exceptional counter-terrorism
powers to stop and search without reasonable suspicion.
I am writing to draw your attention to the Committee's
call for evidence in relation to the Remedial Order (attached).
We would welcome any evidence you may wish to submit in relation
to any of the issues identified in our call for evidence.
In particular, we would be interested in any evidence
you are able to provide in support of the statement by the Home
Secretary that "the experience of the police since the suspension
of the section 44 powers has indicated that there is a clear operational
gap in responding to specific threat scenarios which cannot be
met by other, existing powers" (paragraph 16 of the "Required
Information" published by the Home Office with the Remedial
Order—available on the Home Office website). Without disclosing
sensitive intelligence information, can you provide specific examples
of circumstances which have arisen since the Home Secretary's
statement on 8 July 2010, in which a power to stop and search
without reasonable suspicion was considered necessary to prevent
an act of terrorism? I am writing in the same terms to the Metropolitan
Police Service.
It would be helpful if we could receive your reply
by 3 May 2011. I would also be grateful if you could provide the
Committee secretariat with a copy of your response in Word format,
to aid publication.
6 April 2011
3. Letter from the Committee Chair, to Sir Paul
Stephenson, Commissioner, Metropolitan Police Service, 6 April
2011
The Joint Committee on Human Rights is scrutinising
this urgent Remedial Order concerning exceptional counter-terrorism
powers to stop and search without reasonable suspicion.
I am writing to draw your attention to the Committee's
call for evidence in relation to the Remedial Order (attached).
We would welcome any evidence you may wish to submit in relation
to any of the issues identified in our call for evidence.
In particular, we would be interested in any evidence
you are able to provide in support of the statement by the Home
Secretary that "the experience of the police since the suspension
of the section 44 powers has indicated that there is a clear operational
gap in responding to specific threat scenarios which cannot be
met by other, existing powers" (paragraph 16 of the "Required
Information" published by the Home Office with the Remedial
Order—available on the Home Office website). Without disclosing
sensitive intelligence information, can you provide specific examples
of circumstances which have arisen since the Home Secretary's
statement on 8 July 2010, in which a power to stop and search
without reasonable suspicion was considered necessary to prevent
an act of terrorism? I am writing in the same terms to the Association
of Chief Police Officers.
It would be helpful if we could receive your reply
by 3 May 2011. I would also be grateful if you could provide the
Committee secretariat with a copy of your response in Word format,
to aid publication.
6 April 2011
4. Letter to the Committee Chair, from Assistant
Commissioner John Yates, Metropolitan Police Service, 13 May 2011
Thank you for your letter dated the 6th April 2011
and the opportunity to provide evidence in the matter of the replacement
power to stop and search without reasonable suspicion Section
47A Terrorism Act 2000 and the Joint Committee on Human Rights
(JCHR) call for evidence of any 'operational gaps'.
I intend to deal with this response in two forms:
Firstly to provide you and the Committee with a broad outline
of the main challenges that we face in terms of counter terrorism
legislation and its use, and secondly in the confidential annexe[53]
detail the operational 'gaps' as I see them in relation to the
current threat picture.
You will know that Section 44 Terrorism Act 2000
(Section 44) provided a power exercised by police on the basis
of a detailed authority provided by an officer of at least the
rank of a Commander within the Metropolitan Police Service (MPS).
In practice this has always been undertaken at a more senior level,
by the Assistant Commissioner of Specialist Operations. The Section
44 power provided police with an ability to stop and search persons
for articles of a kind that could be used in connection with terrorism,
whether or not the officer had grounds to suspect the presence
of such articles. This was a unique feature of the power but one
of the main public concerns in relation to its use.
Section 44 Powers were then considered by the Secretary
of State who reviewed the documented evidence, before confirming
authority within 48hrs of the application. Authority was granted
for a period of 28 days at a time and each refreshed request required
a new submission by a Commander or above. The Secretary of State
had power to withdraw her authority at any time.
The format of the Section 44 request was always submitted
on the basis of Home Office defined categories requiring detailed
information about the terrorist threat. Any submission was therefore
predominantly based upon a highly confidential documented assessment
of that current threat by the Police, Security Service and JTAC,
as well as specific relevant operational updates.
Responsibility for developing the threat picture
itself lies with the Security Service (MI5http://www.mpa.gov.uk/committees/mpa/2007/070531/07/
- fn002)[54]
working to the Director General. Essentially
the police respond to the information generated by a complex process
of analysis. Our intelligence partners assess a wide range of
different and generic sites to be (at the very least) aspirational
terrorist targets. Of particular importance is the potential vulnerability
of sites across the whole of the MPS area. Unsurprisingly, these
include the transport systems, economic targets, the utilities,
crowded and iconic/tourist attractions, shopping centres and other
'soft' targets, making London a 'special case' in terms of vulnerability
or threat. This was a sentiment strongly expressed by Lord Carlile,
the Independent Reviewer of Terrorist Legislation (2001 to 2011)[55].
Were the threat against London to increase, it is likely that
(because of the very high threat level in which we are now continually
operating) this would be on the basis of very specific new intelligence.
Rather than lowering the threat elsewhere in the Capital, this
would simply focus further activity in response to the intelligence
received.
There was broad agreement amongst legislators and
police (and contained in the judicial and government reviews that
have taken place) that the exercise of Section 44 is a tactic
to disrupt, deter and prevent terrorism, and helped create a hostile
and uncertain environment for terrorists who wished to operate
in London. Research based case studies from Belfast and the City
of London[56]
demonstrated in practical terms how
a power such as Section 44 could protect and secure major cities.
The research indicated the intrinsic value of specific target
hardening activity through robust search regimes, described as
'opportunity-blocking against highly determined offenders'. Specifically,
where robust search regimes were applied to vulnerable locations,
terrorist activity was displaced outwards. The implications of
the research supported the view that prevention tactics, including
searching, can be seen as legitimate and necessary in increasingly
wide circles beyond a particular site, event or geographic location.
The effectiveness of (broad) Stop and Search powers
to prevent, deter and disrupt criminality is much debated. The
MPA Scrutiny Report on Stop and Search identified issues that
arise from the use of these powers, and in particular the impact
on minority communities. The scrutiny did not come to a position
on effectiveness. Both Lord Scarman in 1981 and Lord McPherson
in 1999 addressed the issue of Stop and Search, and both pointed
to the same issue of negative community impact—but both
believed it was an important tool in preventing and detecting
crime. Criticism surrounding the balance between the number of
stops and arrests resulting would appear to miss the point that
the legislation and its use deliver a deterrent factor. Measurement
of success is challenging to quantify as success could be that
nothing has happened.
Millar, Bland and Quinton (2000)[57]
summarised previous documented evidence
on the effectiveness of stop and search, concluding it has a "disruptive
impact on crime by intercepting those going out to commit offences"
and that "where searches are used intensively in particular
locations they may have a localised deterrence or displacement
effect." There is "evidence that the very existence
of stops may prevent crime, whether or not they involve searches".
DAC Peter Clarke (now retired) had described Section
44 as "contributing to the safety and security of the capital".
His comment that "Intelligence shows that London is considered
by terrorists to be a hostile operating environment." was
made in the context of the commencement of the 2009 MPS review[58]
and in respect of the tactical role of Section 44 in countering
threat.
The MPS believes that high visibility, overt policing
tactics have changed the behaviour and has interfered with the
activity of terrorist subjects, for example altering travel routes,
forcing periods of inactivity etc. Section 44 also had resonance
with other stop and search powers exercised daily by the police
(locally and nationally) in that it is a disruption/prevention/reassurance
measure. It was used pan London and more latterly in targeted
protection of particular crowded and iconic places.
Evaluating how Section 44 contributed to the safety
of Londoners is a demanding goal, but the process included customer
satisfaction and customer confidence indicators, rather than a
crime detection framework. The MPS recognised then and acknowledged
the concerns of the MPA, the media and the community and view
these matters seriously. The MPS continues to engage with Londoners
in a more open discussion about the role, function and legitimacy
of the use of any stop and search power.
Before moving from Section 44, it is important to
state that Section 44 had been subject to considerable public
and media attention since its inception, most notably through
annual reviews undertaken by Lord Carlile and through Judicial
Review proceedings and other legal challenges. It was also the
subject of ACPO practice advice published in 2006 and 2009. During
use of the legislation the police have sought, working in conjunction
with the community, to respond to criticism and legal challenges.
Fine tuning of the application process saw a move from the more
'blanket' style approach to the targeting of specific and defined
geographical areas. However, events were overtaken by the case
of Gillan & Quinton which brought about the decision by the
European Court of Human Rights in 2010 in ruling the use of the
S44 power as unlawful when used whilst based upon grounds without
suspicion.
Call for Evidence
Having placed previous use of CT stop and search
powers into context, I would like now to move onto the specific
areas of interest of the JCHR. In your letter you have asked for
evidence of a clear operational gap in counter terrorism which
requires the immediate availability of a replacement power to
stop and search without suspicion.
Having had the Section 44 power (with all its documented
considerations and restrictions), the MPS found itself without
a CT Stop and Search without suspicion power from July of last
year. The two major events for which a Section 44 authority were
required, in order to provide security, safety and reassurance,
were the New Years Eve Celebrations and the New Years Day parades
in central London. A Section 44(1) authority (stop and search
vehicles and persons within the vehicles) was authorised on the
basis of assessed threat for a specific area over a short period
of time.
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. In terms
of operational gaps, 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 initial areas identified are provided at Confidential Annexe
A.
The New Powers (47A)
Section 47A has provided the police with a power
that is sufficiently circumscribed as there is a robust statutory
Code of Practice and in addition to this new police guidance is
currently being drafted to further support any usage in the near
future. In terms of any operational deployments of the new power,
the remedial order provides a clearer definition and therefore
a more targeted and proportionate power.
Much discussion has been had around the issue of
the Authorising Officer having to be satisfied that they have
to now have 'reasonable grounds to suspect that an act of terrorism
will take place' instead of the previous wording around preventing
acts of terrorism. This is a fundamental increase in the threshold
for the relevant signatory. The difficulties in assessing the
distinction between reasonable belief, grounds and suspicion cannot
be underestimated and our view is that the threshold should not
be set so high as to make it unachievable.
As part of the extensive work with the Home Office,
their legal advisers and the ACPO lead for "Stop and Search"
Chief Constable Craig Mackey, the MPS was fully sighted on the
discussion that took place prior to any submissions to the Home
Secretary and the Attorney General. In respect of the specific
points raised around the authorising process, duration of an authority
and the manner in which it is sanctioned and ratified, I am content
with the recommendations as stated in the remedial order.
In terms of any pre-authority judicial oversight
(as opposed to executive oversight), I cannot see a case for this
as the current process has a significant level of oversight already
as the application passes from the Assistant Commissioner to the
Home Secretary and is scrutinised at each level. We would need
to look very closely at adding an additional level of bureaucracy
especially if it were in the midst of what may be a testing scenario.
If an additional administrative phase were to be added, I could
see that the person having that judicial oversight would need
to be vetted to the highest level (Developed Vetted) and have
access to the full intelligence picture in addition to a background
of operational experience to make what, in effect, is an operational
decision. An alternative process could see a model where the applications
are submitted by the police to an independent 'S47A Commissioner'
similar to the role performed by the Office of Surveillance Commissioners
(OSC) which appears to work well with recognised independence.
As you will remember with the Section 44 work, prior
to its suspension, extensive consultation was undertaken around
the notification and publication stages of its use. The new 47A
powers are in essence in the same space as the suspended powers
in that, the police have already moved towards a widely publicised
version of any authorities, stops and searches.
As you will also be aware, at this time the MPS have
not considered it appropriate to use these powers as the MPS have
not been presented with sufficient intelligence to reach the threshold
necessary to support the use of an authority, however should the
intelligence threat change to one of where an authority is warranted
then the MPS would consider an authority subject to the conditions
laid out in the legislation. The MPS is mindful of the continuing
need to assess the developing intelligence picture in and around
the Olympic events in 2012.
13 May 2011
5. Letter to the Committee Chair, from James Brokenshire
MP, Parliamentary Under Secretary for Crime and Security, Home
Office, 19 May 2011
I am grateful for the opportunity to respond to a
number of questions raised by the Committee in respect of the
remedial order laid down before Parliament on 17 March, concerning
terrorism and stop and search powers. Please accept my apologies
for the delay in responding to you.
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?
The Government set out the reason for introducing
powers in both the "required information" and the explanatory
memorandum which accompanied the remedial order. In brief, the
explanatory memorandum states that:
The review (of counter terrorism and security powers)
also took into account the fact that there may be circumstances
in which stop and search powers requiring reasonable suspicion,
or other measures such as high visibility policing, are insufficient
to counter the threat of an intended terrorist attack on a particular
site or transport network, but have no (or incomplete) information
about the identity or characteristics of those planning to conduct
it. It would be difficult to and probably impossible in such circumstances
to reach the threshold required to conduct a stop and search under
section 43 of the 2000 Act (power to search an individual on reasonable
suspicion that the person is a terrorist). And yet it would be
vital to have a power of stop and search available to address
the potential terrorist threat in such circumstances. The review
therefore concluded that it was necessary to introduce a replacement
stop and search power, which is exercisable without reasonable
suspicion, but which is available only in circumscribed circumstances.
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?
The powers contained in the remedial order can only
be authorised where an authorising officer has "reasonable
suspicion that an act of terrorism will take place and the powers
are necessary to prevent it". As the robust draft Code of
Practice makes clear, the reasonable suspicion must relate to
a particular act of terrorism rather than be based on a generic
assessment that an act of terrorism is likely.
The exact wording of the test for authorisations
was considered in great detail during the counter-terrorism review
by the Home Office and by the police. The potential wording considered
was whether an authorising officer should "reasonably believe"
or "reasonably suspect" that an act of terrorism "will"
or "may" take place.
One of the primary concerns was to draft the new
powers in a way which ensured they were significantly circumscribed
but remained useful. A threshold of "reasonable belief"
would, in our opinion, be too high to ensure that chief officers
were able to authorise the powers on the basis of the information
available, especially if that information consisted of intelligence
which could not be immediately corroborated but need to be acted
upon. A threshold of "suspicion" allows the chief officer
to authorise the powers as long as that suspicion is reasonable.
However, in order to ensure that the powers are only authorised
in response to an immediate threat, the powers can only be authorised
where there is reasonable suspicion that an act of terrorism "will"
take place, rather than were one "may" take place. If
the grounds for an authorisation cease to apply, the legislation
is clear that an authorisation must be cancelled.
- 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?
The remedial order makes it clear that the authorisation
may only last for as long as is necessary and may only cover a
geographical area as wide as necessary to address the threat.
The length of authorisation and the extent of the police force
area that is covered by it must be justified by the need to prevent
the suspected act of terrorism.
We are aware that in submissions to the Counter Terrorism
Review, some correspondents, in particular Liberty, suggested
that the authorisation period be as limited as 24-48 hours and
for only a very small geographical area of up to 1km square. The
review considered this and found that such an approach would be
operationally unworkable given intelligence of an expected attack
is rarely so detailed to give exact times and places. The legislation
makes clear, however, that authorisations should be as time and
geographically limited as possible.
In some respects the new proposals go further than
Liberty has suggested. Liberty has suggested that the police should
be allowed to stop and search people in the vicinity of particularly
critical or sensitive buildings or during important events. The
new proposals would only allow this if there was some intelligence
to suggest that event or place was under threat of attack.
- Should the legislation expressly prevent the
giving of a new authorization other than on the basis of new or
additional information?
While the legislation does not expressly prevent
the giving of a new authorisation upon the expiry of one previously
made, the Code of Practice published alongside the remedial order
makes it clear that "rolling" authorisations of the
kind made by some forces under the old section 44 powers, where
similar geographical areas are repeatedly covered by authorisations
based on the same information, are not permitted.
However, if no new authorisations were allowed at
all, this would mean that it would not be possible to authorise
the powers in an area previously covered, even where the existing
intelligence had been reassessed and remained current and credible.
This reassessment is crucial for meeting the threshold of an authorisation;
if supporting evidence is out of date and the authorising officer
cannot show reasonable suspicion that an act of terrorism will
take place, then an authorisation cannot be made. Conversely,
if the information available shows that a threat persists, then
the threshold for an authorisation may be met.
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?
The review of counter-terrorism and security powers
considered the judicial authorisation for the use of the new terrorism
stop and search powers and decided that it was not appropriate.
The Government as the executive needs to be responsible for national
security decisions and the judiciary should be able to review
such decisions as necessary. Blurring the lines between the executive
and the judiciary would not be helpful.
- Should there be a requirement that authorizations
be publicly notified?
We considered whether authorisations should be publicly
notified as part of the review of Section 44 and concluded that
it was not a necessary additional safeguard and that it would
be counter-productive. On the first point, the European Court
of Human Rights in their Gillan judgment did not make specific
mention of the lack of publication of the authorisations in their
main criticisms of the Section 44 powers. We consider that the
very significant steps that the Government has taken to replace
Section 44 with a much more tightly defined and circumscribed
power with enhanced safeguards means that the new powers comply
with Convention rights. On the second point, the police advised
that publishing information on when and where authorisations were
in place would allow terrorists to regulate their behaviour. It
would, in effect, provide them with an extra reconnaissance tool
giving information about which areas were subject to authorisations,
and if authorised on the basis of specific intelligence, could
allow terrorists to make a connection between the areas authorised
and the intelligence which the police had access to.
- Does the Code of Practice contain any safeguards
which ought to be on the face of the legislation?
We consider that the legislation already includes
very significant safeguards and limits to ensure that the power
is proportionate. This includes:
- The threshold for senior police officer to authorise
the use of the proposed powers is much higher. The senior police
officer must reasonably suspect that an act of terrorism will
occur and consider that the powers are necessary to prevent that
act of terrorism.
- The length of time that any authorisations are
in place has been halved and authorisations must be as geographically
and temporally limited as possible.
- The Secretary of State has greater power to refuse
and amend authorisations.
- The purpose of a search has been narrowed.
- The legislation requires a statutory code of
practice.
Whilst the statutory Code of Practice includes important
guidance and supporting information to police officers, all of
the key safeguards are already on the face of the legislation.
- Should the Code of Practice contain any additional
safeguards?
We consider that the Code of Practice for the remedial
order contains sufficient safeguards, but we look forward to the
Committee's views as to whether there are any additional safeguards
that it considers necessary.
The Protection of Freedoms Bill makes the Secretary
of State responsible for preparing a Code of Practice containing
guidance about the exercise of the powers conferred by sections
43 and 43A; the exercise of the powers to give an authorisation
under section 43B (to be amended to 47A); the exercise of the
powers conferred by such an authorisation; and such other matters
that the Secretary of State considers appropriate. The Code of
Practice for the remedial order provides, in effect, interim guidance
for the section 43B (to be amended to 47A) power provided by the
Protection of Freedoms Bill. I will be undertaking a wide ranging
public consultation of the draft Code of Practice for the stop
and search powers provided by the Protection of Freedoms Bill
before it comes into force.
19 May 2011
53 Procedural arrangements in respect of confidential
submissions and protocols discussed with the Clerk of the Committee
(Mr Mike Hennessy) prior to any documents being submitted. Back
54
MI5 Website address: www.mi5.gov.uk Back
55
Lord Carlile of Berriew Q.C. was appointed in 2001 as the independent
reviewer of the Terrorism Act 2000 and he has reported annually
on its operation, including the use of Section 44 powers. Back
56
Coaffee, J. (2003) Terrorism, risk and the City: The making of
a contemporary Urban Landscape Hampshire, England: Ashgate Publishing Back
57
Millar, J., Bland, N. and Quinton, P. (2000)The impact of stops
and searches on
crime and the community, Police Research Series Paper 127 lib5.leeds.ac.uk/rlists/law/law
5010.htm Back
58
Section 44 Terrorism Act 2000 - tactical use review Report: 10,
Date: 7 May 2009.www.mpa.gov.uk/search/?qs=1&sc=2&qu=MPS+section+44+stop+and+search+report+2009&search
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