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Terrorism Act 2000

Volume 720: debated on Thursday 8 July 2010


My Lords, with the leave of the House, I will repeat a Statement made earlier today by my right honourable friend the Secretary of State for the Home Department. The Statement is as follows.

“Mr Speaker, I should like to make a Statement on stop and search powers under Section 44 of the Terrorism Act 2000. On Wednesday of 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 this judgment—although we would not have done so had we been able. We have always made clear our concerns about these powers and they will be included as part of our review of counterterrorism 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 the civil liberties of every one of us.

But neither will I leave the police without the powers they need to protect us. Since last Wednesday, I have sought urgent legal advice and consulted police forces. In order to comply with the judgment—but avoid pre-empting the review of counterterrorism legislation—I have decided to introduce interim guidance for the police. I am therefore changing the test for authorisation for the use of Section 44 powers from requiring a search to be ‘expedient’ for the prevention of terrorism, to the stricter test of it being ‘necessary’ for that purpose.

More 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. Officers will be able to use Section 44 only in relation to the searches of vehicles. I will confirm those authorisations only where they are considered to be necessary, and officers will be able to use them only 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 counterterrorism laws.

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.

My Lords, I am grateful to the noble Baroness for repeating the Statement made earlier in the other place by the Home Secretary. An issue was raised in the other place—about which the Home Secretary said she had no knowledge and would investigate—on the mystery of there being two written Oral Statements circulated in advance. One, obviously, was supplied by the Home Secretary immediately prior to her Statement. However, an earlier draft—circulated by whom I know not—came into my possession and the possession of other Members, presumably, of your Lordships’ House and the other place. When compared with the draft, the Oral Statement made contained 23 amendments. All 23 amendments were deletions— significantly so in relation to Northern Ireland—and therefore the Statement is either a masterpiece of editing and brevity or it is truncated. As I said, the right honourable lady the Home Secretary said that she would investigate the situation and report. It would be very useful if that explanation could be provided to Members of this House as well as of the other place.

In a sad way, it has been a memorable week. Yesterday was the fifth anniversary of 7/7 and it reminded us all of the threat that the country faces and the tremendous work of the security services and the police in protecting our citizens from harm. Tributes have been rightly paid to the dedicated work of both the security services and the police. I am sure it is everyone’s intention, including that of the coalition Government, that we should not do anything deliberately that would diminish their ability.

One part of the Statement surprises me—that is the statement that had the Home Secretary been the Home Secretary at the time of the original judgment in the European Court, she would not have sought to appeal it. The court judgment was based on the way in which Section 44 powers were used by the Metropolitan Police some years ago. The Met has now reviewed the situation and there has been a tightening up of the procedures in the intervening period. More significantly, the Home Secretary will be aware that the UK courts, including the House of Lords, had rejected arguments that the Quinton and Gillan case represented a breach of Article 8. In particular, the Law Lords were doubtful whether an ordinary superficial search of a 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 that 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 of a report from the Home Affairs Select Committee in 2005 which found that there was no substance in the allegation that there was targeting of particular communities.

Against all those judgments of British law—by which some members of the coalition, when in opposition, put greater store than any European judgment—it seems rather surprising that had the Government been the Government at the time they would not have proceeded to appeal. However, it seems sensible in the present circumstances and in the light of the judgment to change the test for authorisations from “expedient” to “necessary” and to use the test of “reasonable suspicion”.

We have concerns about the intention to restrict Section 44 powers to the searching of vehicles. I know that it is an interim proposal and I have heard the Home Secretary explain why she wanted to make a Statement as quickly as possible to the House. She said that since last Wednesday she had consulted, but it was not clear to me who had been consulted and what strength had been given to the advice. I therefore seek clarity on a number of questions.

What is the view of ACPO—the practitioners—in this matter? What is the view of the Metropolitan Police Commissioner on this new change? What is the view of the Police Service of Northern Ireland? What is the view of the noble Lord, Lord Carlile, who has given great service in the role that he has played? Why do the Home Secretary and the Government believe that it is necessary to go this far in responding to the European Court’s judgment? Are we saying that nothing less will suffice? Will she publish for consultation the list of options that will be considered in the review mentioned by the noble Baroness so that we can see what alternatives might be subject to debate? Concerns have been expressed over time about the use of stop and search. We are aware of those, which is why a considerable tightening-up has taken place.

As the Home Secretary rightly said, we are always talking about the balance between security and human and civil rights. However, it seems to this side of the House that there is a prospect of the police and the security services being asked to protect us over the coming years with fewer officers, diminished resources and now potentially restricted powers. The coalition agreement was clear on some of these issues but, in all honesty, it is not the coalition agreement that will keep us safe; it will be the security services and the police. Although I think that it is right that Parliament should be paramount and that politicians should make the judgment, politicians also have a considerable responsibility to listen to those who, day to day, take the risks and deal with the many problems that we have in this area. I have asked these questions so that we have clarity on consultation. I will be interested to hear the noble Baroness’s response.

My Lords, I thank the noble Lord for his response. His first point was about what happened with the draft. As I understand it, this was one of those things that happen in government. The earlier draft, which the Home Secretary had not seen and had not approved, somehow escaped into the parliamentary Chamber, but it was not her view of what she needed to say. The Statement that I read is what the Home Secretary thinks is the correct position.

I entirely share the noble Lord’s sentiments about the tribute that we should pay to the police for the work that they do. That was particularly apt yesterday, which marked an occasion in our national life when we saw the effectiveness of the police, the resilience of the emergency services and, indeed, the bravery, courage and common sense of ordinary people. In essence, that is what will, in the end, get us through this period of international threat to us.

The noble Lord picked up the sentence in the Statement relating to our view that we would not have appealed the judgment had we been in office. He rightly said that the domestic court had previously rejected some of the arguments. However, it is fair to say that, in opposition, both parties of the coalition had been extremely critical not only of the excessive use to which the Metropolitan Police had put these powers but also—this is the second point, which the noble Lord did not mention—of the fact that the powers were drafted too widely. In our view, this law is defective. That does not mean to say that there is not legitimate need and that there may not be circumstances in which a power of this type will be needed. That is one of the issues that we will take up in the review.

The Home Secretary made it quite clear that this is interim guidance for an interim situation. The police cannot be left in legal limbo, which is why it is necessary for us to take these measures now. We have done so in consultation with the police. Their main concern was to ensure that they were operating legally, because not to be doing so would clearly leave them in considerable difficulty—indeed, in legal peril. They needed clarity and guidance, which is what they have been given. We will continue our discussions with them about the powers that may be necessary.

As for the views of others, the noble Lord, Lord Carlile, has told me that he agrees with the measures that have been taken. He takes the view that the position that has been arrived at is in substance desirable. We will look at whether that is the case and at whether there are contingencies in which it will be necessary to have some other reserve power, although we have not come to any judgment on that.

The noble Lord asked whether we will consult during the review process. Consultation will be built in to the review process. We do not intend that it should be only an internal governmental activity.

The final point was about the need to ensure that the security services and the police have the resources to keep us safe. Of course that is right. I hope that there is nothing between the two sides of the House on the question of taking national security seriously. However, we have to recognise that there is a difficult financial and public expenditure situation, from which the police cannot be entirely immune. None the less, I have confidence that the police take their priorities seriously and we in the Government will certainly act with due care in relation to public expenditure choices that directly affect national security.

My Lords, it seems to me that much is placed on this being interim and on the review. Will the noble Baroness indicate the timescale? For how long will these interim measures be in force? When can we expect the consultation to be complete? When can we expect our security forces to have a clear understanding from Ministers of what is required for the future?

I do not think that the police have any doubt about their position. That position will continue for as long as we are not, in parliamentary terms, able or willing to put in place any other legislative provision. As I say, that will be a matter of consideration in government and consultation. There are a number of related issues in the whole area of counterterrorism and it does not make a great deal of sense to take decisions on one in isolation from considering the impact on others. A wider group of powers need to be considered together. Our aim is to ensure that as much of this package as possible is in the freedom Bill. Therefore, we are talking about a timescale in which the legislation will certainly begin its passage this year.

My Lords, I welcome the Statement in so far as it goes, but I deplore the fact that there is yet another interim measure from the Government to meet our obligations under the European Convention on Human Rights. This has happened too often before and it is time that we met these problems in advance, instead of by having interim measures such as this put before us. The Statement says:

“We have always been clear in our concerns about these powers”.

This is a government Statement, so that presumably refers to the Conservative Opposition as was. Is that the right view? That leads me to ask whether the decision in Gillan and Quinton came as a surprise to what is now the Government or whether they are simply being wise after the event and after they have been forced to take this view. If the Conservative Opposition were always so concerned about these powers, why did they not do more to limit them when they had the chance, instead of being “critical”—I think that that was the word that the noble Baroness used—on the sidelines?

My Lords, I would not say that this situation is tidy; it is not tidy. I entirely accept that it is unfortunate that we get into a situation in which we have to give some interim guidance. The Government take no satisfaction in the present situation. I say to the noble and learned Lord that there are limits to what you can do in opposition. We made our position fairly clear on the desirability of the way in which these powers were drawn and their use at the time. We have always made clear our intention to look at this legislation with a view to amending it in the context of the review that we are undertaking of counterterrorism powers. What happened is that the judgment intercepted the work that we were in any case undertaking.

My Lords, I declare an interest as the Home Office representative on the Metropolitan Police Authority with responsibility for oversight of counterterrorism and security. The Statement which the noble Baroness repeated is probably helpful in the context of the judgments that we have had. I think that there has always been a lack of clarity about whether, in the circumstances, the powers being used in a large number of stops should more properly have been those under Section 43 rather than those under Section 44. I assume that the noble Baroness has described in essence a series of non-statutory guidelines, and that the statute remains in force until such time as Parliament changes it. What is the Government’s view of the use of what were Section 44 powers for target-hardening—that is, the random stop of individuals near a particular location—and is that something that they wish to maintain? In that context, will she comment on the Government’s intentions in respect of the 2012 Olympics? And will the guidelines that she has announced today have an impact on the search regimes around, for example, this building, No. 10 Downing Street and airports?

My Lords, the noble Lord is right in his interpretation. What we have, in effect, are non-statutory guidelines, and the law remains in place. It is not to be ruled out that, should a contingency of an extreme kind arise—and I emphasise “extreme kind”—the Home Secretary would regard it as both right and within her powers to alter the guidelines. It is very important—I come back to this—that we do not put the police in the position of acting illegally.

The noble Lord asked one or two questions about the operation of Section 44 and whether we would regard the use of those powers as appropriate in the case of, for example, hardened targets. That is precisely the kind of issue that we are going to look at—the extent to which, for instance, there may be a very small number of very key sites or very sensitive events, such as the Olympics, where powers of this kind may be appropriate.

The House will forgive me for not wanting to go further than that, because these are the issues that arise out of the situation that we now have. They need careful consideration. We need to consult the police and we need wider consultation. In our discussions with the police, I have had no inkling or suggestion from them that they would regard themselves as impeded in their ability to protect the Houses of Parliament or one or two of the other sensitive sites mentioned. As I say, however, we want to review the powers available for all future contingencies.

My Lords, I very much welcome the Statement that my noble friend Lady Neville-Jones has repeated. I also very much welcome the acceptance of the judgment of the European Court of Human Rights. The Liberal Democrats have been critical of Section 44 for a long time—pretty nearly since its original creation. Section 44 has been abused in the past, notably, as some of us may remember, by the arrest of the old gentleman who heckled the platform at a Labour Party conference. It has also been totally ineffective in preventing terrorist activities. No exercise of the powers under Section 44 in any case where there were no obvious grounds for suspicion has disclosed any evidence of terrorist activity. So I think that we will lose nothing by narrowing the effect of Section 44.

The proposals in the Statement are not a long-term solution; as the noble Baroness said, they are an interim solution. The Statement contains no specific changes to the Terrorism Act 2000. It simply contains intended changes in the application of the law. That means that those changes, not being part of any legislation, could be revoked without any reference back to Parliament. Does the Minister agree that it is therefore necessary to proceed with the amendments to the 2000 Act as soon as possible? How far has the review of the counterterrorism laws referred to in the Statement already gone? When is that review likely to be finished, so that it will be possible to take the essential step of altering the provisions of the 2000 Act?

My Lords, the counterterrorism review is currently under way. It has not got so far that we have cast in stone our future intentions on Section 44 —indeed, in the light of what has happened, we will accelerate our consideration of it. We hope to bring forward revised legislation on this point in the context of the freedom Bill, and that means the autumn. We do not intend to let interim guidance lie as part of public policy an instant longer than is essential and necessary. I am sure that the House agrees that it is an untidy situation and we need to clear it up as soon as possible.

My Lords, while we always welcome the alertness of the judiciary in interpreting the law and its vigilance in championing civil liberties, is it not also the case that judges are apt to interpret the law without particular regard for the practical consequences of their judgment? Yesterday’s judgment in the Supreme Court will surely make it more likely that there will be a significant increase in the incidence of gay asylum-seekers seeking to come to this country and, while we abhor the persecution of gay people in the countries from which they seek to escape, there will be significant practical and political consequences of that judgement. We now have the judgment on Section 44. I note that the Government are not complaining about it, but it does not make it any easier for them to fulfil their paramount responsibility to protect the lives and safety of our people. Is it not the case that the responsibility of Ministers is more difficult and wide-ranging than the responsibility of judges, notably to balance freedom with security? Should we not be wary of a written constitution that would greatly increase the law-making powers of the judiciary? Does the Government continue to believe that Parliament is properly the sovereign law-making body in this country?

I have no doubt that it is the duty of Ministers to balance security with our freedoms. It is also the duty of the Government, Ministers and government agencies to act proportionately. In this judicial defeat, if I can put it that way, we are in the area of proportionality, and we have to adjust. As for the supremacy of Parliament, yes, of course it is supreme.

My Lords, I note that the Government will introduce interim guidelines and that a review of counterterrorism legislation will be undertaken. I have spoken in your Lordships' House about the use of Section 44 powers and the fact that a very high number of people from ethnic minority communities have been stopped and searched. Can the Minister assure me that under the interim powers, people from ethnic minority backgrounds will not be targeted? Can this point be looked into when the review of counterterrorism legislation is undertaken? Can the Minister also clarify why it is necessary for Section 44 powers to continue to be applied to searches of vehicles?

Let me take my noble friend’s second point first. Section 43 does not contain any powers to stop vehicles. I think that the House will understand that it would not be very sensible not to have any powers at all to stop vehicles. In many respects, the greater danger may lie in someone, or persons, trying to do something in a vehicle. So it is necessary to be able to stop vehicles. Therefore, Section 44, as a matter of law, has to remain available for vehicles. In practice, however, it will be interpreted by using reasonable suspicion, as if it were a Section 43 power. I very much take the noble Lord’s point about the need for there not to be discrimination and disproportionality in the stopping of different groups in society. I think that that is a concern to the whole House, and it is being watched very carefully.

Does the Minister agree that, quite apart from human rights and individual rights, this judgment is very much in the interests of good policing? Policing can be effective only with the maximum support and co-operation of the community. There is a real danger, in this very sensitive area, that policy can become counterproductive at the very time when we need that maximum co-operation.

My Lords, I am sure that the whole House endorses that. I think that 7/7 was an example of the extraordinary importance of the community coming together. A noble Lord said earlier that there had been a considerable reduction in the use of Section 44 powers initiated and undertaken by the police. I think that that is in recognition of exactly the point that the noble Lord made; that is, it is important to be seen to be using the powers fairly and proportionately, and it creates resentment if those two characteristics are not present.

My Lords, I was not going to say anything, until I heard the noble Lord, Lord Howarth, speak. Like my noble friend Lord Goodhart, I speak, I suppose, for the Liberal Democrat side of the coalition. Is the Minister aware that those of us in that part of the coalition greatly value the way in which the new Home Secretary and the Minister in this House respond to difficult judgments such as that of the European Court of Human Rights? The contrast, I am sorry to say, with former Home Secretaries and others from the opposition party when they were in power is very real. Again and again, I heard Labour Home Secretaries denounce either the courts of this country or the European Court of Human Rights when they lost cases. I am sure that the Minister is aware of that. What is so remarkable about the new Administration is that, although these cases involve difficult balances between national security and personal freedom, the new Home Secretary has not cavilled or quarrelled with the judgments but has accepted them as part of the rule of law. Does the Minister agree with me that it is the function of the judiciary, in partnership with the Executive and Parliament, to interpret and apply the law, and that the suggestion that our Supreme Court or the European Court of Human Rights are somehow less in touch with reality than Ministers is a heresy which I had hoped would no longer be expressed by the party opposite?

I shall pass on to my right honourable friend the Home Secretary the compliments of the noble Lord. I think that we would all agree that this constitution functions well when its three parts, the Executive, the courts and Parliament, see eye to eye.