Terrorism Act 2000 (Remedial) Order 2011


The Committee consisted of the following Members:

Chair: Hywel Williams 

Brake, Tom (Carshalton and Wallington) (LD) 

Dakin, Nic (Scunthorpe) (Lab) 

Davies, Geraint (Swansea West) (Lab/Co-op) 

Doran, Mr Frank (Aberdeen North) (Lab) 

Doyle-Price, Jackie (Thurrock) (Con) 

Drax, Richard (South Dorset) (Con) 

Duddridge, James (Lord Commissioner of Her Majesty's Treasury)  

Evans, Graham (Weaver Vale) (Con) 

Glindon, Mrs Mary (North Tyneside) (Lab) 

Henderson, Gordon (Sittingbourne and Sheppey) (Con) 

Herbert, Nick (Minister for Policing and Criminal Justice)  

Mahmood, Shabana (Birmingham, Ladywood) (Lab) 

Mercer, Patrick (Newark) (Con) 

Mulholland, Greg (Leeds North West) (LD) 

Paisley, Ian (North Antrim) (DUP) 

Rutley, David (Macclesfield) (Con) 

Watts, Mr Dave (St Helens North) (Lab) 

Wilson, Phil (Sedgefield) (Lab) 

Eliot Barrass, Committee Clerk

† attended the Committee

Column number: 3 

First Delegated Legislation Committee 

Monday 10 October 2011  

[Hywel Williams in the Chair] 

Terrorism Act 2000 (Remedial) Order 2011 

4.30 pm 

The Minister for Policing and Criminal Justice (Nick Herbert):  I beg to move, 

That the Committee has considered the Terrorism Act 2000 (Remedial) Order 2011 (S.I., 2011, No. 631). 

I welcome you to the Chair, Mr Williams. I also welcome the hon. Member for Birmingham, Ladywood, to what may be her last outing on the Opposition Front Bench on terrorism issues, and I congratulate her on her promotion to other responsibilities, which I hope that she will enjoy. 

The order is made under the Human Rights Act 1998. It will replace the stop-and-search powers in sections 44 to 47 of the Terrorism Act 2000, which are generally referred to as the section 44 powers. Those powers allow police officers to stop and search individuals for articles that might be used in connection with terrorism, whether or not the officer suspects the presence of such articles. They may be exercised only at a certain time and place, as authorised by a chief officer and confirmed by the Secretary of State. 

The European Court of Human Rights found in the case of Gillan and Quinton that the powers contained insufficient safeguards against arbitrary use, and that they were 

“not in accordance with the law”. 

On 28 June 2010, that ruling became final and, on 8 July last year, the Home Secretary stated in the House that use of the powers without there being reasonable suspicion would be suspended, pending a review. She made it clear that even if there had been an option to appeal the European Court’s decision, the Government would not have done so, because of our long-standing view that the powers were misused and discredited. That view was shared by many, including the former independent reviewer of terrorism legislation, Lord Carlile, who repeatedly raised misuse of the powers in his annual reports. 

A review of those powers was conducted as part of the Government’s wider review of counter-terrorism and security powers. On 26 January 2011, the Home Secretary announced the conclusion of that review—that section 44 would be repealed and replaced with the significantly circumscribed power of allowing the police to stop and search individuals and vehicles without having reasonable suspicion only in exceptional circumstances. The Government have introduced that change in the Protection of Freedoms Bill, which will soon be discussed on the Floor of the House. 

The review also recommended that consideration might be given to whether the new powers should be made available more quickly than is possible through the Protection of Freedoms Bill. The Home Secretary

Column number: 4 
subsequently informed the House on Second Reading, on 1 March, that she intended to make the remedial order. 

The order has been made under the urgent procedure set out in schedule 2 to the Human Rights Act, which allows the Government to amend primary legislation when there are compelling reasons to do so and such amendments are necessary to address an incompatibility with convention rights. The order will lapse following the coming into force of similar powers in the Protection of Freedoms Bill. 

The ruling of the European Court made it clear that there was an incompatibility to address. Our view was that given the very serious circumstances in which the new powers might be used, it was necessary to make them available as soon as possible. That has been done using the urgent procedure, which has allowed the change in the law to take effect immediately. Using the non-urgent procedure would have delayed the implementation for about seven months. 

I appreciate that the use of an urgent remedial order is unusual, but it would have been irresponsible for the Government not to have taken the opportunity to replace the powers sooner. At the time the order was made, the threat from international terrorism was severe, meaning that an attack was assessed as highly likely. The threat from terrorist groups related to Northern Ireland remains serious; so far this year, there have been 23 attacks on national security targets in Northern Ireland. 

The threat level from international terrorism has recently been reduced from severe to substantial, but that still means that an attack is a strong possibility. There might still be circumstances in which police have intelligence about an attack, but where that intelligence is not specific enough for the police to use stop-and-search powers, given that reasonable suspicion about a particular individual or vehicle would be required. 

Ian Paisley (North Antrim) (DUP):  I certainly agree that to move expeditiously to protect the public and property is a sensible way to make progress. On the authorised area, could the Minister be specific and reassure us that it is not as specific as “street X to street Y in the town/land of”, but is general enough to allow the protection of a 200-mile border, which we have in Northern Ireland, so that if there is a general awareness of a terrorist attack, the police can protect by stop-and-search powers? 

Nick Herbert:  I will come to that point in due course. It is clear, however, that the powers in the order represent a significant correction in favour of liberty. Under section 44 powers, stop-and-search without reasonable suspicion became too familiar a part of police practice, particularly in London. It had become a blunt instrument used in a manner and to an extent that was never envisaged by Parliament. The powers provided by the remedial order and replicated in the Protection of Freedoms Bill put a stop to that. The new powers are fairer, more focused and more proportionate. They provide a necessary operational tool while implementing robust safeguards to prevent misuse. 

The new powers, inserted as section 47A in the Terrorism Act 2000, acknowledge that stop-and-search without reasonable suspicion is a serious divergence from normal

Column number: 5 
policing and that the powers should be used only exceptionally. The unacceptably low threshold for the old section 44 powers, which allowed a chief officer to authorise the use of the powers when they were considered expedient to prevent an act of terrorism, has been removed. The new powers require that an officer reasonably suspects that an act of terrorism will take place and considers that the powers are necessary to prevent such an act. Furthermore, an authorisation can only cover a geographical area and period of time necessary to address the threat. This is a much higher threshold and will ensure that the use of the powers is genuinely only for exceptional circumstances where there is insufficient information to use reasonable suspicion powers to prevent an attack or other terrorism-related activity. I hope that that helps to address the hon. Gentleman’s concern. 

Ian Paisley:  Does the Minister envisage that a senior police officer could say, “All of Greater Manchester is under a very active and specific threat. We do not know whether that attack will come from the north or the west, so all of Greater Manchester therefore be subject to stop-and-search powers.”? All of Northern Ireland is under specific and active threat; therefore, we can have stop-and-search along the 200-mile border. 

Nick Herbert:  We need to be clear that it depends on the nature of the threat. 

Ian Paisley:  Yes. 

Nick Herbert:  The authorisation must be limited, as I have just said, to what is necessary to prevent that threat. It could apply, therefore, to the whole of a police force area, including in Northern Ireland. It would depend on the assessment of the threat, but overall the powers are—as the hon. Gentleman is aware and as I have described—circumscribed as to the length of time when they can be brought into practice. I will come to that in a moment. I will also come to the statutory code, which will ensure that the authorisations are focused. I hope that that will allay the hon. Gentleman’s concerns. 

Geraint Davies (Swansea West) (Lab/Co-op):  Does the Minister accept that the powers are a substantial diminution of the power of the police, therefore significantly increasing the risk to the civilian population, although obviously in the name of their rights? 

Nick Herbert:  No, I would not accept that. The whole thrust of what I have been arguing is that we seek the remedial order to ensure that powers are available to the police where there is a specific threat, but we also seek to address the concern expressed by the independent reviewer, the European Court and others. I assume that the hon. Gentleman agrees that we should have regard to what they say to ensure a proper balance between liberty and security. That is what we seek. I understood that the Opposition supported that approach, but perhaps we will hear otherwise. 

Tom Brake (Carshalton and Wallington) (LD):  Does the Minister agree that on occasion a much more targeted approach can enhance security? 

Column number: 6 

Nick Herbert:  I agree with my right hon. Friend. We had such arguments in the context of the freedoms Bill. If we impinge excessively on people’s liberty, it can be very harmful to the protection of our security if it results in questioning of the measures and undermining of the democratic values that we seek to protect. 

We have consistently said that we will give the police the powers to deal with the terrorist threat, which is precisely why we are introducing the remedial order. However, we have to ensure that there will be a proper balance. I should point out that there have been no section 44-related terrorism convictions, despite hundreds of thousands of stop-and-searches in some police force areas. 

I talked about the time limit that we are introducing. The order reduces the maximum period of an authorisation from 28 to 14 days, further reinforcing the requirement that the powers will be used only with up to date intelligence and information. 

The purpose of stop-and-search has also changed. Section 44 allowed an officer to search for articles that could be used in connection with terrorism. That provision has been tightened so that new section 47A allows an officer to look for evidence that the person is a terrorist or that a vehicle is being used for the purposes of terrorism. That means that the use of the powers is more closely aligned with a particular threat. 

In addition to those changes, there is a robust statutory code of practice. It sets out detailed requirements for making an authorisation and for the exercise of the powers. It also specifically addresses arbitrary use, ensuring that the powers are used only as a last resort. It places detailed requirements on the police to provide justification for authorisations, prohibits the continuous renewal of authorisations and requires effective monitoring and community engagement. 

The order represents a much needed rebalancing of powers. It provides the police with an appropriate and proportionate tool in exceptional circumstances. There are robust safeguards to ensure that the public’s confidence in our counter-terrorism powers is not undermined in the way we saw with section 44. I commend the order to the Committee. 

4.42 pm 

Shabana Mahmood (Birmingham, Ladywood) (Lab):  It is a pleasure to serve under your chairmanship, Mr Williams. I thank the Minister for his explanation of the order and for his kind words of congratulation at the outset of his remarks. 

I do not intend to detain the Committee for long. As the Minister explained, the order has come about because of the European Court of Human Rights judgment in the Gillan case. Following that, the Home Secretary announced interim guidance in July last year on the use of section 44 powers without reasonable suspicion and said that the powers would be suspended pending review. That review took place as part of the counter-terrorism review, which reported earlier this year. It was announced that section 44 would be repealed and replaced with a more circumscribed power in the Protection of Freedoms Bill. 

However, the counter-terrorism review also found that there was an urgent need for the Government to retain a counter-terrorism stop-and-search power that

Column number: 7 
may be used without reasonable suspicion, as part of the legislative framework dealing with the threat of terrorism. The Home Secretary decided to plug the gap that she herself had rather unfortunately created, by introducing the remedial order in addition to the provisions in the Protection of Freedoms Bill that will replace section 44 of the Terrorism Act 2000. Coincidentally, as the Minister said, the Bill is being debated on Report in the House today and tomorrow. The provisions in part 4 of the Bill that deal with stop-and-search will be debated on the Floor of the House tomorrow afternoon. 

When the Bill was being debated in Committee, we set out our deep concern at the way the Government have handled the changes to the stop-and-search regime, although I appreciate that the Minister was not responsible for the Bill. The operational gap of nine months, which emerged following the Home Secretary’s hasty statement on 8 July last year, has been wholly unacceptable. The Government should not have suspended the necessary powers without any real idea of what would replace them. However, we are where we are. Given the knots that the Home Secretary has tied herself in, there is perhaps only one way out, so we will not vote against the order today, especially as it comes ahead of the debate on the same provisions in the Protection of Freedoms Bill on Report tomorrow. 

Before I conclude, I shall ask the Minister some short questions about how the regime will deal with authorisations for use of the power. Will he explain what evidence was used to favour a 14-day limit on authorisations of stop-and-search over any other time frame? Must the renewal of authorisations be on the basis of fresh evidence? Must something new have happened—in relation to the intelligence picture, for example—or, in practice, will the increase of an authorisation period from 14 to 28 days be effectively automatic once it is requested by the relevant officer? 

Finally, how many times will an authorisation be subject to renewal? I have in mind the terrorism prevention and investigation measures that the Government have recently introduced. In that regime, something new must happen before a notice can be renewed to rebalance the situation in favour of civil liberties, as the Government have said. Do they envisage that the order will work in the same way as the TPIMs regime in that new information must be present before the power can be used again, or will the approach be a little different? I should be grateful to hear the Minister’s response to those points. 

4.46 pm 

Patrick Mercer (Newark) (Con):  I shall be brief. Following the points made by the hon. Member for North Antrim, I think I am right in saying that I am the only person in the Committee who has used stop-and-search powers in practice. I fully understand that misuse, or even overuse, of such powers can be desperately damaging and dangerous for those seeking to counter terrorism and to reimpose law and order, and I understand that many of the restrictions are sensible. However, we had those powers in Northern Ireland, and problems such as those that we faced for 30-odd years have not gone away; they will be back. All sorts of threats have emerged, and not necessarily in Northern Ireland. As long as the

Column number: 8 
powers were properly applied, they gave the security forces—the police, the Army, and so on—the powers they needed to help to counter terrorism. 

I understand the restrictions, but will the Minister reassure me that the mechanism for reimposing stop-and-search powers will be sufficiently flexible to allow the security forces to respond to fast-moving intelligence? That is the difficulty. While the powers were in play—in Northern Ireland, for example—they could be used sensibly and effectively. I am the first to admit that sometimes they were misused, and carte blanche use was not necessarily acceptable. I am concerned, however, that as threats emerge and situations change, we are imposing on the police, and the security forces generally, a restriction that will not allow us to react as flexibly as we might. I say that in relation to the Olympic games next year, during which many different illegal bodies will pose threats against this country. I should be extremely grateful for the Minister’s answer. 

4.48 pm 

Ian Paisley:  The hon. Member for Newark said that he is the only hon. Member who has used stop-and-search powers; I am possibly the only one who has had them used on him—several times. When I started driving in Northern Ireland I was frequently stopped at police road checks under the powers and asked where I was going, where I was coming from and whether I had any means of identification. 

As someone who supports society, I was willing, and reassured, to give that information time and time again, whether to members of Her Majesty’s forces or to police officers. I was happy to have my vehicle searched in the knowledge that it was being done to protect the society in which I lived. By and large, most people accept that, if exercised properly and if in order, the powers are for the good of society. We should not forget that. 

Patrick Mercer:  I might add that on one occasion I had the pleasure of stopping the hon. Gentleman’s father. When I apologised for inconveniencing him, he said, “No, you are only doing your duty. I find it reassuring that you are doing it effectively.” That was said to me many times. 

Ian Paisley:  I thank the hon. Gentleman for that intervention. It is funny; it is absolutely true that if policing is seen to be done in difficult circumstances when there is a general terrorist threat, it gives a blanket of reassurance to the community. Thankfully, those days in Northern Ireland have diminished, although they are not over. Unfortunately, the international terrorist threat on this part of our nation is increasing. The reassurances given by the powers should not be easily cast aside. I understand that the Court judgment has caused the Minister and the Home Secretary to rethink the issue, but casting those reassurances aside and so webbing our police service, our security services and our military, in a way that means that they are hamstrung in doing their duty, would be a retrograde step. I am not saying that the order provides that, but the reassurances that are being sought are critical. We need to know that the flexibility our military and our police require is available so that they can do their duty. 

Column number: 9 

Next year this city will host the Olympics. There is no doubt that the vast majority of people will go to enjoy the Olympics for all the right reasons, but there is a specific and active organisation that will want to destroy that. Legislation that allows the police the freedom to stop and search people when they believe there is suspicion is critical and necessary to protect for the greater good, so that we can all enjoy a sense of freedom. 

I hope that the legislative change will not impede the police in their ability to do that. That is why I have asked whether the authorised area can be interpreted liberally. As I have said, we have a 200-mile border. I have a specific example. When a bomb was planned for Enniskillen, the route in for that bomb—if anyone knows the geography of Northern Ireland—happened to be County Londonderry. That meant going through another couple of counties to get that bomb to Enniskillen. Recently a bomb was detected for County Armagh. The bomb was not coming through the County Armagh side of the border, but again through County Londonderry. Just authorising a narrow area would be foolish and wrong, so I welcome the Minister’s saying that the area will be interpreted with regard to how wide the threat is. 

Geraint Davies:  Does the hon. Gentleman accept that in the case of the London Olympics and the sophisticated, fast-moving tube system, it is important that the police have the flexibility to go after mobile targets who may be using public transport, rather than being restricted to particular areas? 

Ian Paisley:  The point is well made. The authorised area must be broad enough and flexible enough to allow the police to do their duty. It must not be so restricted that it says to the terrorist, “There’s an easy route for you here, guys. There’s a way around this.” It must also deter the terrorist, so that they know that at any time they may be subject to a search. That would change their patterns, which may throw up anomalies in how they are moving around and so make the security services more suspicious. I want the Minister to bear that in mind and recognise that he has the full support of people like me and those on my Benches, who say that the police should have the liberty to do this, because we know that they are protecting society for the greater good. 

4.54 pm 

Tom Brake:  I want to make a few brief comments. I welcome the more targeted approach that the Government are using on stop-and-search and tackling the terrorist threat. That approach will be more effective than the one adopted by the previous Government. The Minister was right to point out that the previous powers were extensively used and did not lead to terrorist charges. 

My experience was slightly different from that of the hon. Member for North Antrim. Clearly there are law-abiding citizens who understand why the police have to take action again and again, but equally, there are law-abiding citizens who have contacted me, as well as many other hon. Members here today, to express concern that they were subject to the powers, even though they were going about their lawful business. In some cases, their age and profile might have suggested that they were very unlikely to present a terrorist threat. The hon. Gentleman’s experience is slightly different from mine. 

Column number: 10 

Ian Paisley:  I have some sympathy with that view, but I must add that age and profile is no cover; it does not have to relate to a person of a different race or origin. The most effective terrorists in Northern Ireland were women. They would push their pushchairs through the security barriers and into shops in Northern Ireland. They could not be a terror threat, could they? Yes, they actually were. We must understand that people out there will use whatever cover they can. We should be educated into saying, “This is for the greater good of this society.” 

Tom Brake:  The hon. Gentleman makes a sound point. However, law-abiding citizens going about their daily business may feel that the powers were an imposition and, more importantly, not an effective way to identify the most significant threats. It is perfectly right that the Government should make changes and I am confident that security will not be affected as a result. 

4.56 pm 

Nick Herbert:  I am grateful for what I detect is broad support for the Government’s action. There are some concerns, but I hope to be able to address them. The hon. Member for Birmingham, Ladywood asked about authorisations and what evidence was used in respect of the 14-day limit. The Government had to decide on a reasonable duration that balanced the need for ongoing security with operational requirements as intelligence is rarely specific about the exact timing of an attack. There was also a full consultation with the police. 

Secondly, the hon. Lady asked whether the renewal provisions required fresh evidence or whether they would effectively allow automatic renewal. The provisions do not refer to renewals, to ensure that there is a requirement that an authorisation that is broadly similar to one immediately preceding it goes through the same process of rigorous justification and scrutiny as if it were the first of its type being made. The code of practice makes it clear that rolling authorisations are not allowed; they were common in some places under section 44 and were one of the criticisms of the way that legislation was used. 

Thirdly, the hon. Lady asked how many times the procedure could be renewed. Further authorisation can only be made on a further assessment. It is the case that this may be based on the same underlying intelligence, but there has to be a further assessment before there is a renewal. 

My hon. Friend the Member for Newark emphasised the importance of responding to fast-moving intelligence; he and the hon. Member for North Antrim were concerned to ensure that there were sufficient powers for the police to deal with a terrorist threat. Of course they must have sufficient powers, provided that civil liberties are properly safeguarded—that is common ground. With respect to the hon. Gentleman’s specific concern about whether the measure would confer sufficient flexibility, the senior police officer makes the authorisation, which can be done quickly, and the authorisation comes into force immediately. Only subsequently is it subject to the Secretary of State’s approval, so there is no reason why the procedure should hamstring the police—to use the hon. Gentleman’s expression—as he might fear. 

Column number: 11 

On the hon. Gentleman’s concern about the geographic area and extent of the application of the power, which he also expressed in an intervention, I repeat that an authorisation could be for the whole of Northern Ireland, if supported by intelligence. We have not restricted the maximum area permitted in an authorisation for the very reasons set out by the hon. Gentleman. I hope, therefore, that he is reassured. 

Concern about the Olympics was expressed. We are committed to delivering a safe and secure games for all, and we are confident that we have the right plans in place to do so. The overall funding envelope—the availability of funding—for Olympic security measures remains as envisaged by the previous Government. 

Column number: 12 

In conclusion, I am grateful for the support of the Committee on an important measure. It was right for the Government to act in response to the European Court’s decision, and equally right for us to ensure that there is a remedial order, so that we do not simply sweep away the power but replace it with something more proportionate and more effective. That is the right approach to ensure security while preserving essential liberties. Once again, I commend the order. 

Question put and agreed to.  

Resolved, 

That the Committee has considered the Terrorism Act 2000 (Remedial) Order 2011 (S.I., 2011, No. 631). 

5.1 pm 

Committee rose.  

Prepared 11th October 2011