The Order, in force since 18 March 2011, gives the police an exceptional counter-terrorism power to stop and search without reasonable suspicion. The Order was made by the Home Secretary following the judgment of the European Court of Human Rights in Gillan and Quinton v UK. In that case the Court found that the current powers to stop and search without reasonable suspicion violated the right to respect for private life in Article 8 of the European Convention on Human Rights because they were too broad and lacked adequate safeguards against possible abuse.
The committee first reported on the Order on 15 June 2011, stating that in its current form the Order did not go far enough in terms of safeguards and thus risked giving rise to further human rights breaches. The committee recommended that the Order be replaced with a new Order which modified the provisions of the original Order.
On 18 July 2011, the Home Secretary published the Government response to the report which stated that she had not accepted any of the recommendations concerning the Order. On the same day, David Anderson QC, the Independent Reviewer of Terrorism Legislation, published his annual report in which he also expressed concerns that the safeguards in the Order and its Code of Practice are not strong enough to prevent possible human rights violations.
The committee therefore again calls upon the Government to amend the Order:
- (i) to make explicit 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
- (ii) to require prior judicial authorisation of the power to stop and search without reasonable suspicion.
The committee also recommends the removal of all references in the Code of Practice 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.
The committee also maintains its belief that Parliament needs to be provided with more information about the nature of the operational gap which the Government says requires the replacement power to be available immediately.
It also calls on the Metropolitan Police to provide the Independent Reviewer of Terrorism Legislation with the same information it provided the committee so that he can to come to a conclusion about the nature of the operational gap asserted by the Government.
The Order has to be agreed to by both Houses of Parliament before 14 October or it lapses. It is set down for debate in the House of Lords on 14 September and in the House of Commons in October.
Comments from the Chair
Dr Hywel Francis MP, the Chair of the Committee, said:
"We are disappointed that, despite some welcome clarifications, the Government has not accepted the need to amend this Order to prevent possible future human rights violations.
We want the Independent Reviewer, David Anderson QC, to examine the operational gap which the Government says justifies using the urgent procedure for this Order.
The power to stop and search without reasonable suspicion is rightly controversial and has to be very tightly controlled. We remain concerned that, as it stands, without tighter definition of the power and stronger legal safeguards, the Order will not prevent future legal challenges."
Remedial Orders are secondary legislation made under the Human Rights Act 1998. They are used to remove incompatibilities with the European Convention of Human Rights (ECHR) in primary legislation identified by either domestic courts or the European Court of Human Rights (ECtHR).
The text of the Remedial Order and the explanatory material published by the Government can be found on the Home Office website;