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Terrorism Bill

Baroness Scotland of Asthal: My Lords, I beg to move that the House do now again resolve itself into a Committee on the Bill.

Moved accordingly, and, on Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Baroness Kennedy of The Shaws moved Amendment No. 132:


"COUNTER-TERRORIST POWERS
(1) Part V of the Terrorism Act 2000 (c. 11) (counter-terrorist powers) is amended as follows.
(2) In section 44 (authorisations)—
(a) in subsection (3), for the words after "if" to the end substitute "the person giving it reasonably believes it to be necessary for the prevention of acts of terrorism";
(b) after subsection (3) insert—
"(3A) The area or place specified in the authorisation, within which the power conferred by the authorisation may be exercised, must be no greater than is proportionate to the nature of the specific threat."; .
(c) in subsection (4)—
(i) after "given" insert "for a period specified in the authorisation not exceeding 24 hours";
(ii) in paragraphs (a) to (d), in each case omit the words "the whole or";
(d) in subsections (4A), (4B) and (4BA), after "given" insert "for a period specified in the authorisation not exceeding 24 hours";
(e) after subsection (4C) insert—
"(4D) An authorisation may be given for a period specified in the authorisation not exceeding 28 days by the Secretary of State, who must lay the authorisation before both Houses of Parliament as soon as reasonably practicable.";
(f) after subsection (5) insert—
"(6) An authorisation must be publicised within 7 days of it being given.
(7) Publicity under subsection (6) above shall be effected in such manner as the Secretary of State considers appropriate for the purpose of bringing the information to the attention of the public."
(3) In section 46 (duration of authorisation)—
(a) for subsection (1) substitute—
"(1) Where an authorisation has been given by a person listed in section 44(4), if it is considered by the person who gave the authorisation, or a person who could have given it, that it is necessary to do so having regard to the nature of the specific threat of terrorism, he may apply to the High Court judge for an order under this section that the authorisation shall be renewed for a further period not exceeding 24 hours.";
 
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(b) for subsection (2) substitute—
"(2) A High Court judge may grant an application under subsection (1) if satisfied that it is necessary for the prevention of acts of terrorism for the authorisation to be renewed for a further period not exceeding 24 hours.";
(c) for subsection (3) substitute—
"(3) Where an authorisation has been given by a person listed in section 44(4), the person who gives the authorisation, or applies for renewal under subsection (1), shall inform the Secretary of State as soon as is reasonably practicable and in any event within 24 hours.";
(d) omit subsections (4), (5) and (7)."

The noble Baroness said: The new clause relates to counter-terrorist powers and would amend Section 44 of the Terrorism Act 2000. Section 44 permits a police officer, within an authorised area, to stop and search an individual without any need to have a reasonable suspicion of unlawful behaviour. The officer can detain the individual for the duration of that search and, if an individual refuses to allow an officer to search him or attempts to leave while being detained, he will be guilty of an offence. The requirement of reasonable suspicion provides a fundamental safeguard against the arbitrary and discriminatory use of police powers that can be both intrusive and intimidatory. The requirement limits the circumstances in which an officer can exercise the power and provides the subject with a standard against which the lawfulness of the search can be tested.

Over the years, police powers to stop and search have caused extreme tension between the police and the community, particularly in relation to disproportionate use against ethnic minorities. That has occurred even when the standard of reasonable suspicion has been in place. When that standard is removed, the potential for abuse is massively increased. I emphasise that I accept that, in a state of emergency, exceptional powers may be necessary. What concerns me and others—for example, the Joint Committee on Human Rights, Liberty, and other organisations concerned with civil liberties and justice—is the way in which Section 44 is being used. At the DSEi arms fair in Docklands in September 2003, police officers used Section 44 to stop and search large numbers of peaceful protestors. The Metropolitan Police originally denied that that was happening but was forced to change its stance when evidence came to light.

The organisation Liberty issued judicial review proceedings against the Met claiming that the use of Section 44 against the peace protestors was unlawful because it was not being used to combat terrorism but rather to assist public order policing. In addition, the legislation itself was challenged as being incompatible with European convention rights since it leads inevitably to arbitrary use. The litigation is currently travelling to the House of Lords, and the Appellate Committee will consider the challenge in January 2006.
 
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In the course of the Liberty proceedings, it was discovered that the entire Greater London area has been subject to a rolling Section 44 authorisation since February 2001—before 9/11. That effectively changes the law on stop and search for a significant proportion of the population indefinitely. The secrecy of the way in which authorisations have been given is unjustified and, in the light of the acknowledged aim of creating a hostile environment for potential terrorists, is in fact having the opposite effect.

Since the arms fair incident, there have been several other occasions on which the flaws in Section 44 have been highlighted. The Home Office figures on stop and search show that a disproportionate number of minority ethnic individuals, particularly Asians, have been stopped and searched under Section 44. In 2002 to 2003, the number of Asians subject to stop and search under this section rose by 300 per cent. On the previous occasion the noble Baroness said that that had gone down slightly in the following year. However, a survey conducted by the BBC suggests that there has been a significant increase since 7 July this year, with many police forces saying that in the months since that date they have exercised stop and search powers under Section 44 on a basis three times greater than in the whole of the previous year.

In the wake of the 7 July bombings, two incidents have once again drawn attention to the inherent risk of granting police powers without safeguards. The chief constable of the British Transport Police remarked publicly that his police officers, when exercising their Section 44 powers, would not waste their time searching white old ladies but would concentrate on young Asian men. Since those remarks, the British Transport Police has met the organisation Liberty and revised its guidance to officers to take out references to particular ethnic groups. But an individual officer remains free to exercise stop and search powers on the basis of racial stereotyping without the protection of the "reasonable suspicion" standard.

At the Labour Party conference in Brighton, Mr Walter Wolfgang was detained but not searched by a police officer purporting to use his powers under Section 44—a section that allows only a search of an individual and detention for that purpose. Mr Wolfgang has publicly stated that he believes that officers were stopping and searching only those displaying controversial political views. It is questionable whether opposing the Government's foreign policy on the war in Iraq can be said to be controversial. Mr Wolfgang has since received a formal public apology and an acknowledgement that the police officer acted wrongly, and the Sussex constabulary has revised its guidance to officers. Nevertheless the incident highlights the way in which extraordinary police powers can be abused if they are not carefully monitored.

Like Liberty, I believe that a stop and search power that does not require reasonable suspicion should be used only in a genuinely blanket or random way. Since an officer already has the power to stop and search an individual on the basis of reasonable suspicion—under
 
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Section 43 of the Terrorism Act 2000—any use of Section 44 on the basis of suspicion must be triggered by a standard that is lower than reasonable. In other words Section 44 is being used to allow officers to stop and search on the basis of unreasonable suspicion, which is a recipe for discriminatory use.

There are only two appropriate ways to use the power—I do not put my suggestions in order of preference. First, we should designate a limited area for a limited time and then search every individual in that area. If, for example, the limited area was Downing Street because President Bush was visiting, anyone in that area of Whitehall wanting to pass through could be stopped and searched indiscriminately and it would apply to everybody. If everyone was treated exactly the same there could be no scope for discrimination or arbitrariness. Secondly, if that is not possible because of lack of resources or some other genuine reason, we should stop and search on a truly random basis, such as every fifth person or every tenth vehicle passing a particular point or officer.

While it is difficult to legislate for that approach, the proposed amendment to Section 44 would place limits on the section's use and would prevent the abuses of power that happen now. The amendment would change the standard for authorisation of the use of Section 44 from being considered "expedient" for the purposes of preventing terrorism to being "reasonably believed to be necessary". It would change the basis for the authorisation. Secondly, it would reduce the area that can be covered by a Section 44 authorisation so that authorising an entire police area, for example, a county or the whole of Greater London, would no longer be straightforward. We would do that by introducing a proportionality test.

Thirdly, the amendment introduces a two-tier process for making Section 44 authorisations. Police officers may give the authorisation but it will last only 24 hours, subject to a 24-hour extension by a High Court judge. If the authorisation is needed to last longer than 24 hours, it should go outside the police's remit, and the Secretary of State may authorise a period of up to 28 days, but that must be laid before both Houses of Parliament to provide accountability. Fourthly, the amendment introduces a requirement to publicise authorisations within seven days to allow individuals to know their rights and again to increase accountability.

Finally, I want to quote something that was said by the Metropolitan Police Authority in evidence to the Home Affairs Committee on 8 July 2004. It said that it had been given "powerful evidence" that Section 44 was having a "hugely negative impact" on community relations, and added:

The Metropolitan Police Authority went on:

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The Joint Committee on Human Rights has noted mounting evidence that the powers under the Terrorism Act 2000 are being used disproportionately against members of the Muslim community in the United Kingdom. It is for those reasons that I have placed the amendment before the Committee. I beg to move.

11.45 am


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