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Terrorism Act 2000 (Section 44)

Volume 513: debated on Thursday 8 July 2010

Mr Speaker, I would like to make a statement on stop-and-search powers under section 44 of the Terrorism Act 2000.

On Wednesday last week, the European Court of Human Rights ruled that its judgment in the case of Gillan and Quinton is final. This judgment found that the stop-and-search powers granted under section 44 of the Terrorism Act 2000 amount to the violation of the right to a private life. The Court found that the powers are drawn too broadly—at the time of their initial authorisation and when they are used. It also found that the powers contain insufficient safeguards to protect civil liberties.

The Government cannot appeal against this judgment, although we would not have done so had we been able to. We have always been clear in our concerns about these powers, and they will be included as part of our review of counter-terrorism legislation.

I can, therefore, tell the House that I will not allow the continued use of section 44 in contravention of the European Court’s ruling and, more importantly, in contravention of our civil liberties. But neither will I leave the police without the powers they need to protect us.

I have sought urgent legal advice and consulted police forces. In order to comply with the judgment—but to avoid pre-empting the review of counter-terrorism legislation—I have decided to introduce interim guidelines for the police. The test for authorisation for the use of section 44 powers is, therefore, being changed from requiring a search to be “expedient” for the prevention of terrorism, to the stricter test of its being “necessary” for that purpose; and, most importantly, I am introducing a new suspicion threshold. Officers will no longer be able to search individuals using section 44 powers; instead, they will have to rely on section 43 powers, which require officers reasonably to suspect the person to be a terrorist. And officers will only be able to use section 44 in relation to searches of vehicles. I will only confirm these authorisations where they are considered to be necessary, and officers will only be able to use them when they have “reasonable suspicion”.

These interim measures will bring section 44 stop-and-search powers fully into line with the European Court’s judgment. They will provide operational clarity for the police. And they will last until we have completed our review of counter-terrorism laws and taken any relevant action arising from that review.

The first duty of Government is to protect the public. But that duty must never be used as a reason to ride roughshod over our civil liberties. I believe that the interim proposals I have set out today give the police the support they need and protect those ancient rights. I commend the statement to the House.

I am grateful to the Home Secretary for early sight of the statement. The fifth anniversary of 7/7 yesterday reminded us all of the threat to this country and the tremendous work of the security services and the police in protecting our citizens from harm. The Prime Minister pointed out on Tuesday—very eloquently, I thought—how real those threats continue to be.

The Home Secretary will be aware that the European Court’s judgment was based on the way that section 44 powers were used by the Metropolitan police some years ago, and that the previous Government, together with the police authorities, reviewed and improved their procedures in the intervening period. Will she confirm that the number of stop and searches under section 44 has reduced considerably over the last two years? She will also be aware that all the UK courts, including the High Court and the House of Lords, rejected the argument that the Gillan and Quinton case represented a breach of article 8. In particular, the Law Lords were doubtful whether an ordinary, superficial search of the person could be said to show a lack of respect for private life. Even if article 8 did apply, they said the procedure was used in accordance with the law and it was impossible to regard a proper exercise of the power as other than proportionate when seeking to counter the great danger of terrorism.

The Home Secretary will also be aware that the Select Committee on Home Affairs examined this issue thoroughly in 2005, when the current Prime Minister was a member of that Committee, and rejected the allegation that the Asian community was being unreasonably targeted by the Metropolitan police in its use of section 44 powers. She will also know that while the independent reviewer of terrorism legislation, Lord Carlile, had concerns that section 44 powers were being used too often—this was before the changes in 2007-08—he stated clearly that

“the power remains necessary and proportional to the continuing and serious risk of terrorism”.

Given all those facts, I am amazed that the Home Secretary would not have pursued an appeal, given that every court in this country rejected the argument in respect of Gillan and Quinton.

Nevertheless, we are where we are in terms of the legal avenues in Europe, and it does seem to me sensible to change the test for authorisation from “expedience” to “necessity” and to use a test of “reasonable suspicion”, but I am deeply concerned about the Home Secretary’s intention to restrict section 44 powers to searches of vehicles. That quite clearly restricts the powers of the police.

Was the Police Service of Northern Ireland consulted, given the current dissident threat in Northern Ireland? We sometimes say that there have been no terrorist murders in Britain this year; but there have been in the United Kingdom: there have been terrorist murders in Northern Ireland. What is the view of the Association of Chief Police Officers, and in particular the Metropolitan Police Commissioner, on this restriction? Were they consulted? Was Lord Carlile consulted, and if so, what is his view?

Does the Home Secretary accept that section 43 does not require ministerial authority, and why does she believe it is necessary to go this far, by restricting section 44 to searches of vehicles only, in responding to the European Court’s judgment? Is she saying that nothing less will suffice? Did she explore other legislative options, and will she publish for consultation other options for amending section 44, so that the House can see the alternatives and debate them fully?

We have the prospect in this country of the police being asked to continue to protect us with fewer officers, diminished resources and restricted powers. The Home Secretary needs to understand that it is not the coalition agreement that will keep the public safe—it is the security services and the police. The statement today will undoubtedly make their job more difficult.

First, may I echo the comments that the shadow Home Secretary has made about the important work that is done by the police and by our security services? That, of course, was made absolutely clear by the Prime Minister in the statement in relation to detainees that he made in the House earlier in the week, and I echo those comments. Our police forces do sterling work for us and they go out there every day, dealing with difficult circumstances and are—we should never forget this—prepared to put their lives on the line for our safety.

Yes, I can confirm that the number of stop and searches made under the section 44 and section 43 powers has reduced significantly over time. That should not, though, leave us under any illusion that there are not still concerns, not just in relation to the European Court judgment but concerns more generally in the UK about the use of those powers; that is why, as a coalition Government, we were committed to reviewing those powers in any case in our review of counter-terrorism legislation. I believe it is absolutely right to do so.

The shadow Home Secretary asked about other options that were being looked at. Those will be considered within the counter-terrorism review. The purpose of making this statement today was to ensure that police forces have the operational guidance that they obviously need, so that they know what they should be doing now given the European Court judgment. I remind the shadow Home Secretary that I have responded to that judgment, which is clear about the two points—that these powers should be used only when they are necessary rather than expedient, and that there should be a degree of suspicion in order for the powers to be used. It is exactly that which I am now implementing in the statement and in the changes that are being made.

The shadow Home Secretary asks about restricting the use of section 44 to vehicles rather than individuals. Section 43 allows for the stop and search of individuals already with the reasonable suspicion attached to it. He mentioned Northern Ireland. I certainly do not in any way underestimate the importance of these powers in relation to Northern Ireland. I have been in contact with my right hon. Friend the Secretary of State for Northern Ireland and consultations have taken place in Northern Ireland on the use of these powers, but I remind the shadow Home Secretary that there are various other powers that can be used, as set out in the Northern Ireland-specific legislation. For example, under the Justice and Security (Northern Ireland) Act 2007, the PSNI can stop and question individuals to ascertain identity and movements, and can stop and search people in vehicles for munitions and transmitters, and there are a variety of other powers that can be used by the PSNI.

Finally, the shadow Home Secretary said to me that I, as Home Secretary, need to understand. I think what the shadow Home Secretary needs to understand is the degree of concern that there has been about the use of these section 44 powers under the Terrorism Act 2000—the degree of concern that did arise, not just initially from the way in which they were being used by the police, but a continuing concern about the impact on our civil liberties. I make no apology for the fact—[Interruption.] I believe the shadow Home Secretary was looking at a Liberal Democrat, the hon. Member for Carshalton and Wallington (Tom Brake), and muttering about “their obsession”. I have to say to the shadow Home Secretary that a desire to protect our civil liberties is not an obsession; it is something that we throughout this House should want to do, regardless of political party. I believe it is the duty of Government to balance the need to give the police the powers they need to protect us, with the need to defend our civil liberties, and I believe that is what the statement does.

May I commend the Home Secretary for coming to the House to say what she has said today and particularly for her decision to adopt a necessary, rather than expedient, use of these powers? This is a reflection of the excessive use of counter-terrorism powers by a number of forces throughout the country. In her review of these powers, will she look at their different use in various parts of the country? We know from the London and Glasgow bombings that terrorism is not confined to England, yet the number of uses of the power in England and Wales was well over 100,000 in the past calendar year; in Scotland, it was under 100.

I thank my right hon. Friend for his comments on the statement and for his suggestion, which I am certainly happy to consider. He is absolutely right: the use of the powers among forces has been quite different—not just among England and Wales and Scotland, but between police forces in England and Wales.

I thank the Home Secretary for her statement. She is absolutely right to have taken the position that she has taken. There is no question of a further appeal, given the circumstances, and she is right to introduce guidelines. Will she share with the House any information about further claims for compensation, which could run to hundreds of thousands, possibly millions, of pounds? We obviously look forward to probing her on these issues when she comes before the Home Affairs Committee. Can she assure us that she will return to the House regularly to continue to pursue the previous Government’s counter-terrorism agenda, where we showed zero tolerance; that the claims made by Mr Yates that, somehow, the resources will not be there are ill-founded; and that she will provide all the resources necessary to pursue a strong and vigorous counter-terrorism agenda?

I can certainly assure the right hon. Gentleman that it is the Government’s intention to pursue a strong and vigorous counter-terrorism agenda, and we will, indeed, come to the House at various stages in relation to our review of counter-terrorism legislation and any related changes that we wish to make. He asked a specific question about compensation claims. We have, of course, responded quickly to the European Court’s judgment, but the Court was clear and agreed with the Government that no compensation should be awarded given the short duration of stop-and-search powers. The finding alone was considered by the European Court as satisfaction, although it ordered the Government to pay legal costs.

Can the Secretary of State assure me that the counter-terrorism review to which she referred will draw a line under the abuse of state powers that we have seen over the past decade and that civil liberties will be sacrificed no longer for the sake of new laws that do not make us any safer?

My hon. Friend makes a valid point on the concern that many of us have had about the powers that were introduced by the previous Labour Government: in many cases, those powers did not introduce an increased element of safety. In fact, the shadow Home Secretary referred to the review of counter-terrorism undertaken by Lord Carlile, who said in his 2009 annual report:

“There is little or no evidence that the use of section 44 has the potential to prevent an act of terrorism as compared with other statutory powers of stop and search.”

I must say that I cannot join in the collective hurrah about the removal of powers that the House, not the European Court, should be in charge of. These powers were used successfully on 10,000 occasions last year in Northern Ireland to prevent and disrupt dissident terrorists. The year before that, only 3,000 stop-and-search measures were taken under reasonable suspicion, which is much more difficult to prove and identifies a suspect who may be traced by the police when they do not want him to be identified while they are pursuing him. What measures will now be put in place to ensure that the citizens of Northern Ireland are protected fully, completely and properly from the dissident republican threat?

I am grateful to the hon. Gentleman for raising those issues. Obviously, I recognise the concern that he has raised in relation to the exercise of these powers in Northern Ireland and of the revised powers that I have announced today. The PSNI has a number of other powers available to it, and I referred to a couple of them in the response that I gave earlier to the shadow Home Secretary. The PSNI will still be able to use existing legislation to conduct targeted and intelligence-led stop and searches, to protect its officers and the communities that it serves, but I am happy to write to the hon. Gentleman with more detail about the powers that will continue to be available to the PSNI.

May I welcome the Home Secretary’s statement and express some surprise at the shadow Home Secretary’s attempt to defend the practice that has been ruled illegal? I remind the House that, in 1949, the United Kingdom was the architect of the Council of Europe and the European convention on human rights. Members who represent us at the Council of Europe have been embarrassed over the past few years by some of the previous Government’s actions on human rights. Therefore, in any review of anti-terrorism legislation, will we be cognisant of our obligations under the European convention?

I am happy to give that commitment to my hon. Friend, and I thank him for his excellent service on the Council of Europe, which he has undertaken over a number of years. Just as the point was made by my hon. Friend the Member for Oxford West and Abingdon (Nicola Blackwood), we are cognisant in our work to review counter-terrorism legislation of the need to redress the balance between ensuring that our police have the powers necessary to protect the public and protecting our ancient civil liberties.

I welcome the right hon. Lady’s statement today. She will know that I raised these matters in a series of parliamentary questions after the original judgment was issued. What those parliamentary questions elicited was widespread variation in how the powers had been applied. What steps will she take now to hold those chief constables to account for the way in which they abused the powers that were available to them, thus bringing the whole use of the powers into contempt by members of the public?

I am grateful to the hon. Gentleman. As he says, this has indeed been a matter of concern to him for some time. He is right to say that the use of the powers has been variable among forces and over time. It is, of course, within the Secretary of State’s remit to ensure that they are used partly through the authorisations, which must be confirmed by the Secretary of State within 48 hours of the appropriate level of police putting those authorisations in place. Of course, we will revert to this issue in the counter-terrorism legislation review, and we will consider that matter at that time.

If the coalition is obsessed with defending civil liberties, I am proud of that fact. Is the Home Secretary satisfied that the balance between civil liberties and safeguarding our security is adequately redressed with these changes to section 44; or does she believe that further changes may be required to section 44 after the counter-terrorism legislation review?

I am grateful to the hon. Gentleman for his question. The whole point of making the statement today is to ensure that an interim position is available to the police, so that they have operational guidance and clarity about the powers that they can exercise, but precisely because I feel that we need to take a wider look at section 44 and to look at it in the context of other counter-terrorism legislation, we will continue to consider it within the review. I cannot say at this stage whether any further changes will be introduced, but that would be done in the wider context of the review of all counter-terrorism legislation.

I welcome the Home Secretary’s statement today. The European Court judgment was clear; the previous Government’s attempt to appeal against it has failed; and she has acted properly in the decision that she has announced today. Does the earlier draft of the Home Secretary’s statement that has gone into circulation and that referred to Northern Ireland, particularly to the approach to the parades season, in any way corroborate the suspicion that these powers have been used as a matter of convenience by the police on matters that are not directly a situation where terrorism is suspected? [Interruption.] A draft has gone into circulation somehow that made reference to Northern Ireland and the approach to the marching season. I do not know whether the Home Secretary is aware of that, but certainly I and others received that draft. That feeds the suspicion that the power has been used more generally. Does she agree that section 44 was a misjudgment in legislation which has led in some cases to a misapplication of law enforcement?

I am concerned about the point that the hon. Gentleman has made, although I thank him for his comments on the statement. I assure him that the statement that I have made is the one that was drafted and that I saw this morning in the Home Office before I came to the Chamber. I am concerned if he has seen an alternative version, and I will look into that matter. I am very conscious of the possible impact in Northern Ireland. That is precisely why the Secretary of State for Northern Ireland and I have been discussing this issue over a number of days, and he has been consulting in Northern Ireland on the statement’s impact. I believe that the PSNI had been exercising its powers under the legislation in relation to necessity and reasonable suspicion, and it can continue to do so as a result of the statement that I have made today. As I indicated in an earlier response, other powers will still be available to the PSNI.

Will the Secretary of State reassure the House that the police can continue to use existing stop-and-search powers to combat drug dealers and those carrying knives and guns, and that counter-terrorism legislation ought never to be used for those purposes?

I am grateful to my hon. Friend for that question, which enables me to be clear that the other stop-and-search powers are not affected by the statement. The statement relates to the Terrorism Act 2000, particularly section 44, although other sections are part of the change. I am changing the guidance on section 44, but other stop-and-search powers are still available to police.

I accept that the Home Secretary has acted speedily in view of the Court’s decision. Will the interim guidelines be published? Although I accept her point about civil liberties, is she confident that police officers will not now go in fear of disciplinary action as they attempt to exercise reasonable suspicion in their efforts to protect the rest of us?

On the hon. Gentleman’s last point, I am confident that that will not be the case. The purpose of the statement today, as he recognises, is to give clarity at as early a stage as possible to police officers on how they are to operate the guidelines. The guidelines will be published, including in the Hansard report of my statement.

The Home Secretary should realise that the new guidelines will be very welcome in Kent, where we have had to deal with a number of criticisms of the use of stop-and-search, particular with respect to the climate camp at Kingsnorth. Does she agree that although senior police officers should be consulted on such matters, it is essential that national policy guidance should be determined by her, as the Minister accountable to Parliament, and not the Association of Chief Police Officers?

I am grateful to my hon. Friend for his question. His observation of the difficulty arising from the exercise and use of those powers in Kent shows precisely why there has been fairly widespread concern about them. He is entirely right, which is why I have come to Parliament today to make this statement. The decision on the guidance that is issued to police forces is one that I have taken as Home Secretary.

Last December, I was subject to section 44—[Interruption.] Fortunately, I was sent away and everything was fine, but nevertheless I felt that my liberties as a citizen had been infringed on, and a sense of grievance, albeit a small one, against the authorities. [Interruption.] My great problem with what the previous Government did is this: if we believe in liberal democracy, we must also hold out strongly for its values. We weaken those values at great cost. Does the Secretary of State agree?

I am grateful to my hon. Friend for his comments. The shadow Police Minister, the right hon. Member for Delyn (Mr Hanson), mutters from a sedentary position, “It was random,” but that is the whole point of the European Court judgment. There needs to be a degree of suspicion if the police are to stop and search somebody. On the rest of my hon. Friend’s question, it is important for us to defend our civil liberties. I believe that that is the task of everybody in the House, and I am only sorry that the previous Government chose to infringe those civil liberties in some of their legislative decisions.

Does my right hon. Friend agree that, to be safe, we must keep the whole country on side and ensure that no group feels persecuted or victimised, and that today’s announcement is a welcome step in the right direction?

I am grateful to my hon. Friend, who makes an extremely valid point. It is in a sense an extension of the one made by my hon. Friend the Member for Harlow (Robert Halfon)—notably, one difficulty was that parts of the community felt that the way in which the stop-and-search powers were used was disproportionate. The concerns were such that they began to bring into disrepute the police’s ability to keep us safe at the same time as we, as a Parliament, maintained our civil liberties.

I thank my right hon. Friend for her statement. Will she confirm that there will be no increase in police paperwork as a result of the changes?

I am very grateful to my hon. Friend for ensuring that he keeps us up to the mark on our commitments on police bureaucracy. It is certainly not my intention that there should be any increase in police paperwork as a result of the changes.