In the aftermath of the horrific bombings of 7/7 there was a rush to further anti-terrorist legislation. The pre-charge detention limit was central to the debate. It had stood at seven days for many years until it was doubled to 14 days in 2003 and was extended again, in the 2006 Terrorism Act, to 28 days. This was after Tony Blair suffered his first ever defeat in the Commons in November 2005 when he tried to extend the limit to 90 days.

When Gordon Brown became Prime Minister he returned to this particular fray in autumn 2008, nailing his colours to the mast of 42 days. This proposal was crushed by the House of Lords when peers voted against the measure by 309 votes to 118. The 42 day plan was only passed by MPs by nine votes after the Prime Minister won the support of the nine Democratic Unionist MPs. If ministers had insisted on keeping the 42 day plan there would have been the need for a series of votes in the Commons to overturn the Lords’ rejection and eventually the use of the Parliament Act to force the bill through. As a result the then Home Secretary Jacqui Smith (remember her?) conceded defeat. The Counter-Terrorism Bill continued its journey through Parliament without the 42 day measure. Gordon Brown made his displeasure very clear.

When the coalition government came to power it was announced that there would be an urgent and comprehensive review of counter terrorism powers. In July last year the Home Secretary, Theresa May, announced that she was renewing the current order for 28-day pre-charge detention for six months, while the powers were considered as part of the wider review. That order expires next Monday and it looked as if the Government was going to quietly let it go by default. The opposition would have none of this and demanded a statement. Labour MP Tom Watson, who spotted the move, said it was odd that the Home Secretary would not be making a statement to the Commons before such a major change to the justice system.

Because the Home Secretary was in Budapest at an informal meeting of the Justice and Home Affairs Council, it fell to the Minister for Immigration, Damian Green, to make yesterday’s statement. He told MPs: “I can announce that the Government will not be seeking to extend the order allowing the maximum 28-day limit and, accordingly, the current order will lapse on 25 January and the maximum limit of pre-charge detention will, from that time, revert to 14 days. We are clear that 14 days should be the norm and that the law should reflect that.” He added: “However, we will place draft emergency legislation in the House Library to extend the maximum period to 28 days to prepare for the very exceptional circumstances when a longer period may be required. If Parliament approved, the maximum period of pre-charge detention could be extended by that method.” He also drew attention to the fact that since July 2007 no one has been held for longer than 14 days, despite the many terrorists arrested since then.

We are promised that next Wednesday the Home Secretary will announce to the House the findings from the wider review of counter-terrorism and security powers.

Police stop and search powers under anti-terrorism legislation in the United Kingdom are too wide and not adequately safeguarded by the law against abuse. So held the European Court of Human Rights in a recent judgment. The case concerned the police power in the United Kingdom under sections 44-47 of the Terrorism Act 2000 to stop and search individuals without reasonable suspicion of wrongdoing. These sections came into force on 19 February 2001.

The applicants in this case, Kevin Gillan and Pennie Quinton, are British nationals. On 9 September 2003 they were both stopped and searched by the police, acting under sections 44-47 of the 2000 Act, while on their way to a demonstration close to an arms fair held in the Docklands area of East London. Mr Gillan was riding a bicycle and carrying a rucksack when stopped and searched by two police officers. Ms Quinton, a journalist, was stopped and searched by a police officer and ordered to stop filming in spite of the fact that she showed her press cards. The applicants applied for judicial review. On 31 October 2003 the High Court dismissed the application. The Court of Appeal, on 29 July 2004, made no order on the applicants’ claims against the Commissioner of the Metropolitan Police and dismissed the claim against the Secretary of State. On 8 March 2006 the House of Lords unanimously dismissed the applicants’ appeals. 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, so as to bring Article 8 of the European Convention on Human Rights into operation. Even if Article 8 did apply, the procedure was in accordance with the law and it would be impossible to regard a proper exercise of the power as other than proportionate when seeking to counter the great danger of terrorism. In their appeal to the European Court of Human Rights, the applicants complained that the use of the section 44 power to stop and search each of them breached their rights under Articles 5 (right to liberty and security), 8 (right to respect for private and family life), 10 (freedom of expression) and 11 (freedom of assembly and association).

In its unanimous decision, the Court considered that the use of the coercive powers conferred by the anti-terrorism legislation to require an individual to submit to a detailed search of their person, clothing and personal belongings amounted to a clear interference with the right to respect for private life. The public nature of the search, with the discomfort of having personal information exposed to public view, might even in certain cases compound the seriousness of the interference because of an element of humiliation and embarrassment. The interference could not be compared to searches of travellers at airports. An air traveller may be seen as consenting to such a search by choosing to travel. In the Court’s view, the wide discretion conferred on the police under the 2000 Act, both in terms of the authorisation of the power to stop and search and its application in practice, had not been curbed by adequate legal safeguards so as to offer the individual adequate protection against arbitrary interference. The Court was struck by the statistical and other evidence showing the extent to which police officers resorted to the powers of stop and search under section 44 of the Act – between 2004 and 2008 the total of searches recorded by the Ministry of Justice went from 33,177 to 117,278 – and found that there was a clear risk of arbitrariness in granting such broad discretion to the police officer. While the present case did not concern black applicants or those of Asian origin, the risks of the discriminatory use of the powers against such persons was a very real consideration and the statistics showed that black and Asian persons were disproportionately affected by the powers. There was, furthermore, a risk that such a widely framed power could be misused against demonstrators and protestors in breach of Article 10 and/or 11 of the Convention.

In conclusion, the Court considered that the powers of authorisation and confirmation as well as those of stop and search under sections 44 and 45 of the 2000 Act were neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. They were not, therefore, “in accordance with the law”, in violation of Article 8. Given this finding, the Court held that it was not necessary to examine the applicants’ complaints under Articles 5, 10 and 11. The Court held that the finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage suffered by the applicants. They were awarded 33,850 euros for costs and expenses.

European Court of Human Rights; Gillan and Quinton v. the United Kingdom (application no. 4158/05). Judgment delivered on 12.01 2010, published 15.01.2010.