Home Secretary Theresa May told Parliament yesterday that the government will change how stop and search powers under section 44 of the Terrorism Act are used, with immediate effect.

The move is in response to a decision by the European Court of Human Rights,  which found that the use of stop and search powers under section 44 of the Terrorism Act 2000  amounted to a  violation of the right to a private life. The court said the powers were drawn too broadly at the time of their initial authorisation and did not have enough safeguards to protect civil liberties. The Home Secretary told the House of Commons: “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.” She added that the new government had been concerned about the use of section 44 powers for some time. The changes are designed to comply with the Strasbourg ruling and provide clarity for the police before a review of all counterterrorism legislation this summer. The terms of reference for the review are expected to be announced next week.

The Home Secretary has sought urgent legal advice and consulted police forces, and interim guidance for the police has been introduced which sets 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 to reasonably suspect the person to be a terrorist. Police may search only vehicles under section 44 of the law, and then only if they have reasonable suspicion of terrorist activity. The changes will bring the operation of counter-terrorism use of stop and search powers fully into line with the European Court’s judgment. Theresa May concluded: “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.”

In reply, Alan Johnson, the former Labour Home Secretary, said he was ‘amazed’ that his successor had not tried to appeal against the Strasbourg ruling. He went on to say: “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.” But Lord Carlile, the government’s independent reviewer of anti-terror legislation, speaking on BBC’s ‘World at One’ yesterday, said section 44 had been ineffective in combating terrorism, had caused community tensions and was used arbitrarily and for incorrect purposes. He added: “You don’t have to search people to discourage terrorists, the evident availability of police officers in the area, obvious uniformed policing, is just as much of a deterrent.” And Shami Chakrabarti, director of the human rights group Liberty, said: “Liberty welcomes the end of the infamous section 44 stop and search power that criminalised and alienated more people than it ever protected. We argued against it for ten years and spent the last seven challenging it all the way to the Court of Human Rights. It is a blanket and secretive power that has been used against school kids, journalists, peace protesters and a disproportionate number of young black men. To our knowledge, it has never helped catch a single terrorist. This is a very important day for personal privacy, rights to protest and race equality in Britain.”

Control orders under the Prevention of Terrorism Act 2005 impose curfews and travel restrictions on terror suspects who cannot be prosecuted in courts because the evidence against them has been collected by bugging the suspect or because using it could reveal intelligence sources. Interim orders, signed by the home secretary, must be referred to a judge within seven days for confirmation.

Last week the law lords dealt a major blow to the controversial use of control orders on terror suspects, a key part of the government’s battle against terrorism since the July 2005 bombings, saying that reliance on secret evidence denies them a fair trial. The nine-judge panel upheld a challenge on behalf of three men on control orders who cannot be named. The orders have not been quashed but the law lords have ordered that the cases be heard again. Lord Phillips of Worth Matravers, the senior law lord who led the panel, said that “a trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him” While accepting that there could be conflict where national security is involved, a conflict to be resolved by government subject to the law laid down by Parliament, he added that “the best way of producing a fair trial is to ensure that a party to it has the fullest information of both the allegations that are made against him and the evidence relied upon in support of those allegations. Where the evidence is documentary, he should have access to the documents. Where the evidence consists of oral testimony, then he should be entitled to cross-examine the witnesses who give that testimony, whose identities should be disclosed”. Lord Hope, in concurring, said that “if the rule of law is to mean anything, it is in cases such as these that the court must stand by principle. It must insist that the person affected be told what is alleged against him.”

As a result of this ruling up to 20 men regarded as Britain’s most dangerous terror suspects can challenge their detention. The new home secretary, Alan Johnson, said the judgment was extremely disappointing. “Protecting the public is my top priority and this judgment makes that task harder,” he said. He added that the government would continue to take all steps to manage the terrorism threat. All control orders would remain in force for the time being and he would continue to seek to uphold them in the courts, while considering this judgment and other options carefully.

Shami Chakrabarti, the director of the civil liberties group Liberty, Chris Huhne, the Liberal Democrat home affairs spokesman and Chris Grayling, the shadow home secretary, all went on record to welcome the law lords’ decision and to demand an end to “cruel and counter-productive punishments without trial”.

The full text of the ruling in House of Lords, session 2008-09 [2009] UKHL 28 on appeal from: [2008]EWCA Civ 1148 can be found at:

http://www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd090610/af-1.htm