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Lord Hylton: British Transport Police has already been mentioned. It is clear that that police service is very much on the front line of counter-terrorism activity. It is very much to be commended for holding what it calls community engagement forums, where matters such as stop and search can be discussed in a
 
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reasonably informal way with some of those who have been affected. The chief constable pointed out at the most recent forum that Muslims were not being targeted for stop and search. He went on to say that there had been 22,000 stop and searches, but he did not specify over what period. The result was that there had been very few formal complaints. It is possible that those affected did not know they had a right to complain, and perhaps that should be more widely publicised.

I have it on the authority of British Transport Police that a person stopped may be asked any question that the police officer wishes to put, but he does not have an obligation to reply. It is not an offence not to reply. Perhaps that could be made rather more widely known.

Finally, will the Minister do all she can to ensure that guidance given to police officers, whatever force they belong to, emphasises the importance of having reasonable suspicion before stopping and searching somebody? This will not be possible in all cases, but it should, as far as possible, be the norm.

Lord Thomas of Gresford: As the noble Baroness, Lady Scotland, said, Section 44 can be an important weapon for combating terrorism, but not if it is a blunderbuss that is not aimed at any specific target at any particular time. When we hear that for a number years a rolling authorisation has covered the whole of the metropolitan area, it is clear that the focus of Section 44 powers has been lost.

We have to look at the experience of the way in which the provision has been used. One has to agree with the sentiments expressed by the noble Baroness, Lady Scotland: the section can be confined to a particular location at a particular time; it is an operational decision so that it is a proportionate response to a terrorist threat that should be used with sensitivity and integrity. Those are marvellous sentiments, but the way in which the section has been used demonstrates that it is too loosely drafted. Its use of the word "expedient" in subsection (3) requires amendment in the way that the noble Baroness, Lady Kennedy of The Shaws, has proposed. Instead of giving an authorisation where the person giving it considers it "expedient", the person should give it when he or she reasonably believes it to be necessary for the prevention of acts of terrorism.

It is right that the noble Baroness's amendments go on to define more narrowly the place and time. In subsection (4), she suggests that, instead of the whole of a police area outside Northern Ireland—or the whole of the Metropolitan Police district, or the whole of the City of London and so on—the authorisation should relate to a part that is actually the subject of a terrorist threat. I do not accept the argument that by defining a particular part—and publicising that, so that everybody knows where it is—you therefore leave open other broad areas where Section 44 authorisation has not been obtained.
 
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For those reasons, we support the noble Baroness's amendment.

Lord Elton: I add a quick proviso to what the noble Lord, Lord Thomas of Gresford, has just said, which is that we are apparently moving fairly inexorably towards the enlargement of police areas. This Bill will no doubt be an Act in force when that happens. There will not be an early opportunity to amend it, and there will be great resistance to using parliamentary time to do so anyway. It should therefore be in a form which is fit for purpose when that change comes in, if it does.

Lord Foulkes of Cumnock: I shall try to dispel the apparent consensus that we have heard, that we are all concerned about the rights of the suspected terrorists. Some of us are also concerned about the potential victims. When there are a large number of people concerned about their lives, limbs and future, who are in danger because of increasing terrorism—and we see that—it is important that the police have real, effective and genuine powers, not constrained by lawyers who very seldom get out and about, as I do, on the Underground and buses in London, and see the threat and the problems. There are many ordinary, law-abiding people, on the buses and trains and in their houses, who are concerned by potential threats. It is important that the Minister and the Government take account of those concerns, as well as, of course, the liberty and the rights of people who may be suspected by the police of acts of terrorism. I hope that the Minister will not believe that what she has heard from the Liberal Benches and pseudo-liberal Benches represents the feeling of the whole House.

Baroness Park of Monmouth: I strongly support what has just been said.

Lord Kingsland: I have considerable sympathy with the observations made by the noble Baroness, Lady Kennedy of The Shaws, about the way the current system operates. I suspect that the areas are rather wider than necessary, and that stop and search is sometimes used for purposes other than those set out in the legislation.

Having said that, I am unable to support the noble Baroness's amendment. I say that with genuine reluctance because I often find myself supporting proposals that she has made. The way the noble Baroness has worded her amendment would leave it open to an individual—relatively frequently, if that individual was so inclined—to seek to judicially review the decision of the authorities when it came to seeking an authorisation.

In my view, the nature of the terrorist threat that we face at the moment is such that the ability to judicially review the police in this area could lead them to hesitate in circumstances where their instincts tell them that something needed to be done. In the current circumstances that would be an undesirable consequence. It might lead to a situation in which the "nose", if I can put it that way, of an experienced policeman told him that a problem might arise; but,
 
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because of the way in which the noble Baroness has drafted the amendment, he would be constrained from following his instincts and disastrous consequences might ensue.

So, although I have great sympathy with the noble Baroness's reasons for promoting the amendment, it would be, on balance, wrong for the Committee to accept it.

Baroness Scotland of Asthal: I should say to my noble friend and to the noble Baroness, Lady Williams, the noble Lord, Lord Thomas of Gresford, and the noble Lord, Lord Hylton, that they should not misunderstand the Government's own concern about the way in which these powers should and must be used in order to maintain confidence in the exercise of them. It was for precisely that reason that we set up the stop and search action team, the delivery board and the community panel to report to Ministers. We were very conscious of the need for real, robust and appropriate procedures which would enable us to scrutinise what was being done and to alter practice and procedure if necessary.

So the point raised by the noble Lord, Lord Hylton, about guidance is very much part of the work that we have undertaken with the assistance of the panel and the delivery board. We are working with ACPO and the National Centre for Policing Excellence on guidance which will include provisions on the role of community consultation and assessing the impact that the powers have on communities. This will include full co-operation with police authorities. So we understand the impact that this can have.

However, taking up the issue raised by the noble Lord, Lord Kingsland—in answer, in part, to the question raised by the noble Baroness, Lady Williams—about necessity, their concerns are also very real and we have to deal with them. That is the reality now. I must, with respect, advocate a great deal of caution when my noble friend Lady Kennedy of The Shaws refers to the "whole of London". We are very clear that we never state the area to which the Section 44 order applies. I reiterate what I said earlier: in identifying those areas to which Section 44 applies, we take into account the threat, the assessment made, the location and the reasons for it. Each Section 44 application has to justify why that area is to be identified for the use of Section 44. Every single area goes into that type of critical assessment by a Minister—usually the Home Secretary or the Minister identified. I have had the onerous burden of looking at Section 44 applications. I can assure the Committee that each application is scrutinised, and the evidence adduced to support it is looked at, before a ministerial decision is made as to the propriety and proportionality of what is being requested. Because I cannot from the Dispatch Box answer the assertions that are made, noble Lords should not assume that those assertions are necessarily correct. I can assure the Committee that the orders are proportionate and appropriate. The Government have been very clear about that.
 
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12.15 pm

We have to remember also that Section 44 exists to deter and disrupt. It does not necessarily exist simply because there is a specific threat against a specific person on a specific date at a specific place. Assessments of vulnerability and the nature of the threat are made. Relying on that assessment, decisions on whether a Section 44 order is merited are made. If it is no longer merited, the Secretary of State, or a Minister acting on his behalf, has an opportunity not to confirm that order. If an order is not confirmed, it lapses within 48 hours. If it comes to the attention of the Minister within 48 hours—before that ordinary period has elapsed—and the Minister disagrees with it, we can discharge that order on behalf of the Home Secretary. Noble Lords need to be conscious of the rigour which is adopted in relation to these orders.

I should also make it plain that the stop-and-search statistics will of course be affected by the areas in which Section 44 operates. Those areas will differ in complexion and the nature of the population. What may appear as disproportionate in national statistics may be entirely proportionate when one looks at the area to which the Section 44 order applied. I can assure the Committee that these issues will continue to be scrutinised.

I accept the concern that has been raised by the noble Baroness, but I assure the Committee that Section 44 has within it sufficient flexibility both to keep our country safe and to make sure that it is not used in a way that disadvantages our civil liberties. That balance is maintained in the procedure which now exists pursuant to Section 44.


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