Emergency powers to forcibly relocate terror suspects without consent are being planned by the Government in new emergency legislation, just months after it pledged to scrap the existing measure.

In January, home secretary Theresa May went to the House of Commons to announce the results of the counter terrorism review which was one of the main commitments of the coalition government. The headline announcement was the proposal to scrap the controversial control order regime. Control orders were to be replaced by “a new package of measures that is better focused and has more targeted restrictions,” to be known officially as terrorism prevention and investigation measures (TPIMs for short). There would be removal of those aspects of control orders that most resemble house arrest, with curfews replaced by an overnight residence requirement. In particular, forcible relocation was to be ended and replaced with the power to order more tightly defined exclusions from particular areas.

When the Terrorism Prevention and Investigation Measures Bill was published in May it was widely regarded as a rebranding of the control order regime. The only substantive concession was the removal of provision for internal exile. Now, in a major U-turn, the government has published the Enhanced Terrorism Prevention and Investigation Measures Bill. In the draft bill the Government says that it intends to use powers of relocation or other restrictions “in exceptional circumstances”. The ability to move a suspect to a new home for security reasons, originally abandoned by thegovernment, could now be taken in matters relating to national security. Theresa May said: “We will publish, but not introduce, legislation allowing more stringent measures, including curfews and further restrictions on communications, association and movement.” The powers will be held in reserve and put before parliament should exceptional circumstances arise.

Shadow home secretary Yvette Cooper has branded the draft legislation as “irresponsible, incompetent and potentially dangerous.” “The Government has finally admitted there is a problem with their plans to weaken counter terror legislation and remove the ability to relocate very dangerous terror suspects”, she said. She went on to say: “Instead of amending her own bill to sort this out, the Home Secretary has created a shambolic process of draft emergency legislation that won’t work for those cases and is impractical and chaotic, especially when Parliament is not sitting. It does not give the police or security services what they need to keep communities safe, especially during Olympic year when the capital may need extra protection. The Home Secretary is putting political deals and fudges ahead of national security.”

Other critics include Lord Carlile, former independent advisor on terrorism strategy, who said the legislation is the “worst of all possible worlds”. Tory MP David Davies is reported as saying that the new draft emergency powers are as ill-thought out as control orders. Shami Chakrabarti, the director of Liberty, said: “You can call them control orders, TPIMs, or whatever you like, but they still allow dangerous terrorists to live amongst us whilst innocent people are punished forever with no opportunity to stand trial and clear their name. Ten years into the ‘war on terror’, have we really learned so little?”

Yesterday Home Secretary Theresa May told Parliament that a rapid review of key counter-terrorism and security powers is underway. The review, a commitment in the coalition agreement, published on 20 May 2010, will look at what counter-terrorism powers and measures could be rolled back in order to restore the balance of civil liberties and counter-terrorism powers “and, in so doing, restore the ancient civil liberties that should be synonymous with the name of our country.”

She said: “The review will consider six key powers: control orders; section 44 stop-and-search powers and the use of terrorism legislation in relation to photography; the use of the Regulation of Investigatory Powers Act 2000 by local authorities and access to communications data more generally; extending the use of deportations with assurances in a manner that is consistent with our legal and human rights obligations; measures to deal with organisations that promote hatred or violence; and the detention of terrorist suspects before charge.” She believes that these are the most controversial and sensitive powers. “In particular, the issue of pre-charge detention has been the subject of considerable debate in the House, and tomorrow we will consider whether to renew the current detention limit for a further six months.” That would provide sufficient time to look carefully at pre-charge detention and to explore how the period of detention below 28 days can be reduced. She added: “Personally, I was always in favour of 14 days, but the whole point of a review is to look at what the appropriate period should be, and I do not wish to pre-empt the review’s decision or the information with which it will come forward.”

The review will be conducted by the Home Office with the full involvement of the police, security and intelligence agencies and other Government Departments, including those in Scotland and Northern Ireland, and with oversight from Lord Ken Macdonald QC, former Director of Public Prosecutions. The proposals made by Lord Carlile, in his statutory role as independent reviewer of terrorism legislation, will be fully considered as part of the review. The Home Secretary concluded: “I want the review to be conducted as openly and transparently as possible. I have asked Liberty to contribute to the review, and it has said that it would be delighted to do so. I am keen to involve other civil liberty and community organisations and, as with other reviews, I would urge anyone with an interest to submit their views to the Home Office.” On timing, she said: “I have ordered that the review should be completed as quickly as possible, because it is important that the police and the security and intelligence agencies are able to do their vital work with certainty and confidence. I will report back to Parliament on the outcome of the review after the summer recess.”

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.”

The blog posted on 23 June 2009 concerned the annual report by Lord Carlile, the government’s official anti-terror law watchdog, about the use of s.44 Terrorism Act 2000, which grants police the power to stop and search anyone in a designated area without suspicion that an offence has occurred. He found that examples of poor or unnecessary use of the section abound. “I have evidence of cases where the person stopped is so obviously far from any known terrorism profile that, realistically, there is not the slightest possibility of him/her being a terrorist” he said. He added that terrorism related powers should be used only for terrorism related purposes, otherwise their credibility is severely damaged.

Another blog, posted on 27 January this year, reported the judgment of the European Court of Human Rights that 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. The Court concluded that the powers of authorisation and confirmation, as well as those of stop and search under ss. 44 and 45, 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.

Now comes another embarrassment for the police service with the revelation that tens of thousands of people have been stopped in the street and searched unlawfully, and it could be that they are all entitled to compensation. Fourteen police forces are urgently trying to find the individuals involved after being told by the Home Office that errors had been found in the way 40 separate stop and search operations were authorised since the powers were introduced in 2001. The Home Office said that in most of the cases authorisations were issued for periods beyond the 28-day statutory limit for each operation or were not signed off by ministers within the statutory 48-hour deadline. The Met and City of London police were responsible for 10 of the 40 illegal operations. Thames Valley police were responsible for six, Sussex five and Greater Manchester three.

Nick Herbert, the police minister, said in a written Commons statement on 10 June that the mistake was discovered after a freedom of information request triggered a review of the Metropolitan police’s s. 44 records, which in turn led to a comprehensive review by the Office for Security and Counter Terrorism. He said: “To summarise these errors, on 33 occasions authorisations were specified to be for 29 days, and two occasions when the authorisations were specified to be for 30 days, whereas the statutory maximum period is 28 days. In addition, there was one further case…where ministerial confirmation for the authorisation was not provided within the statutory 48 hour deadline”. Four other cases were mentioned. He concluded: “I am aware that there is considerable concern about the operation of section 44 stop-and-search powers going beyond these authorisation errors. The Government are committed to a wider review of counter-terrorism legislation, including the operation of the section 44 stop-and-search provisions.”

The latest Home Office statistics show that there were 148,798 stop and searches under section 44 in 2009, 40 % fewer than the previous year.  A total of 688 arrests were made as a result of these searches, an arrest rate of 0.5%.

“Examples of poor or unnecessary use of section 44 [Terrorism Act 2000] abound. I have evidence of cases where the person stopped is so obviously far from any known terrorism profile that, realistically, there is not the slightest possibility of him/her being a terrorist…In one situation the basis of the stops being carried out was numerical only, which is almost certainly unlawful…A section 44 stop, without suspicion, is an invasion of the stopped person’s freedom of movement…It is totally wrong for any person to be stopped in order to produce a racial balance in the statistics”.

Not the words of a crusading civil libertarian but the sober judgement of Lord Carlile, the government’s official anti-terror law watchdog, in his annual report. Under section 44, police can stop and search anyone in a designated area without suspicion that an offence has occurred. Last year out of a total of 117,278 people stopped and searched, 73,967 were white, 15,218 were blacks and 20,768 were Asians. Lord Carlile said that he can understand the concerns of the police that they should be free from allegations of prejudice, but it is an invasion of the civil liberties of the person who has been stopped, simply to “balance” the statistics. According to the ‘Guardian’, he later went on to say that “if, for example, 50 blonde women are stopped who fall nowhere near any intelligence-led terrorism profile, it’s a gross invasion of the civil liberties of those 50 blonde women. The police are perfectly entitled to stop people who fall within a terrorism profile even if it creates a racial imbalance, as long as it is not racist”. He could here be accused of validating the concept that it’s OK to stop a non-white, but not OK to stop a blond woman, even though the vast majority of Asians and black people are as far from any known terrorism as he perceives blond women to be.

Nearly 90 per cent of the searches were carried out by the Metropolitan Police, whose officers use section 44 to carry out stop and search between 8,000 and 10,000 times a month. Lord Carlile admits a sense of frustration that the Metropolitan Police still do not limit their section 44 authorisations to specific boroughs, rather than to the entire force area. He can see no justification for the whole of the Greater London area being under permanent special search powers. None of the many thousands of searches has ever resulted in conviction of a terrorism offence, and he says that its utility has been questioned publicly and privately by senior Metropolitan Police staff with wide experience of terrorism policing.

Lord Carlile calls for greatly reduced use of section 44 powers and repeats what he calls his “mantra”, that terrorism related powers should be used only for terrorism-related purposes. Otherwise their credibility is severely damaged. “The use of section 44 has attracted particular criticism as having a negative effect on good community relations. Its purpose and deployment are poorly understood”.

The full text of Lord Carlile’s report can be found at:-
http://security.homeoffice.gov.uk/news-publications/publication-search/general/Lord-Carlile-report-2009/Lord-Carlile-report.pdf?view=Binary