Changes required to Stop and Search law to prevent further breaches of human rights, warns Committee
The Joint Committee on Human Rights (JCHR) today publishes its Report on the Terrorism Act 2000 (Remedial) Order 2011.
Report: Terrorism Act 2000 (Remedial) Order 2011
Joint Committee on Human Rights
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 welcomes the tighter definition of the power and its improved safeguards but believes that the Order in its current form does not go far enough and thus risks giving rise to further human rights breaches. The Committee recommends that the Order be replaced with a new Order which modifies the provisions of the original Order so as to:
- require the officer authorising stop and search without reasonable suspicion to have a reasonable basis for his or her belief that the authorisation is needed, and to provide an explanation;
- prevent the renewal of authorisations other than on the basis of new or additional information, or a fresh assessment of the original intelligence and that the threat remains immediate and credible;
- require prior judicial authorisation for this power to stop and search to be available to the police; and
- require authorisations to be publicly notified once they have expired, so far as is consistent with the protection of intelligence sources
Because of the concerns about the racially discriminatory exercise of the previous power, the Committee also recommends the strengthening of the Code of Practice and bolstering the role of the independent reviewer in order to enhance political accountability for the police and Home Secretary's exercise of the power.
The Committee accepts the need for a replacement stop and search power, agrees with the Government that there are compelling reasons for using the Remedial Order procedure to do so: compared to the announcement of administrative guidance, this provides much greater opportunity for parliamentary scrutiny of the detail.
However, the Report recommends that the Government provide Parliament with more detailed evidence of the sorts of circumstances in which the police have experienced an 'operational gap' in their counter-terrorism powers since the power to stop and search without reasonable suspicion was suspended by the Home Secretary in July 2010. Without detailed parliamentary scrutiny of such evidence, it is difficult for Parliament to assess the appropriateness of proceeding by urgent Remedial Order (which comes into force immediately), rather than by the normal Remedial Order procedure (which gives Parliament the opportunity to scrutinise the Order before it comes into force).
Dr Hywel Francis MP, Chair of the Committee said: "We must ensure that the power to stop and search without reasonable suspicion does not breach the right to privacy in the same way as its predecessor. We welcome the restrictions placed on the power by the Government, but we believe it needs to be more tightly circumscribed, and it needs tougher legal safeguards if further breaches of human rights are to be avoided. We also think that the Government should provide more information about why this power needs to be introduced so urgently, so that the issue can be given proper parliamentary scrutiny".