On 15 June 2011, we reported on the Terrorism Act 2000 (Remedial) Order 2011, an urgent remedial order concerning exceptional counter-terrorism powers to stop and search without reasonable suspicion. The Order must be approved by affirmative resolution of both Houses by 14 October 2011 if it is not to lapse
On 18 July 2011, the report of David Anderson QC, the Independent Reviewer of Terrorism Legislation, on the operation in 2010 of the Terrorism Act 2000, was presented to Parliament. The Independent Reviewer expressed his concern that, under the Remedial Order and the accompanying Code of Practice, the discretion conferred on individual officers remains too broad and therefore continues to carry the risk of arbitariness which concerned the European Court of Human Rights in Gillan. He therefore recommended that the Code of Practice accompanying the new statutory power be revised so as to introduce full and proper guidance on the exercise of the individual officer's discretion to stop and search, in order to minimise the risk that the discretion will be used in an arbitrary manner.
Also on 18 July 2011, the Home Secretary made public the Government response to our Report which stated that she had not accepted any of our recommendations concerning the Order. We have considered this response but we remain of the view we expressed in our first Report that the Order should be replaced by a new Order modifying its provisions.
With regard to evidence of an operational gap requiring use of the urgent procedure for this Order, we restate our conviction that the confidential information provided to us by the Metropolitan Police during our first consideration of the Order raises important issues which ought to be subjected to careful and detailed scrutiny in Parliament. We are not persuaded that such parliamentary scrutiny of the necessity for these powers would endanger national security as the Metropolitan Police alleges. We repeat our recommendation that the Government should find a way to tell Parliament more about the "undisclosable reasons" for its belief that there is a significant operational gap in the police's counter-terrorism powers. We also recommend that the "Confidential Annexe" that was provided to us by the Metropolitan Police be provided to the Independent Reviewer of Terrorism Legislation, to enable him to reach his own view as to the strength of the evidence that without a power to stop and search without reasonable suspicion there is an operational gap of the kind asserted by the Metropolitan Police.
Notwithstanding the clarification in the Government response concerning the objective grounds for the authorising officer's view of necessity, we again recommend that the Order be amended to make explicit on its face that the authorising officer must have a reasonable basis not only for his or her suspicion that an act of terrorism will take place, but also for his or her view that the authorisation is necessary and proportionate to prevent such an act; and we suggest two ways in which this can be achieved by amending the order.
We welcome the Government's clarification that, for a new authorisation to be made under the power of renewal, an authorising officer must have either new intelligence, or have conducted a fresh assessment of the existing intelligence and be satisfied that it still relates to an act of terrorism that will take place.
We agree with the Independent Reviewer, that the Code of Practice, as currently drafted, appears to encourage individual officers to believe that that they have a choice between random searches on the one hand, and searches based on objective indicators, such as behaviour, clothing or carried items, on the other. We therefore recommend that the Code of Practice be amended so as to remove all references to "random" searches and to make more explicit that any individual exercise of the power to stop and search must be capable of being justified by the precise nature of the intelligence about the threat, which amendments would meet the Independent Reviewer's concern that it encourages random searches at the same time as ensuring that a practical power is available in the exceptional circumstances when the intelligence truly justifies it.
We maintain our recommendation that the Order be amended to require prior judicial authorisation of the power to stop and search without reasonable suspicion; and we believe that such a recommendation presents no obstacle to the speedy exercise of the power to stop and search without reasonable suspicion where that is genuinely necessary, because we also suggested an urgent procedure for police authorisation with immediate effect, subject to judicial authorisation within 48 hours.
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