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.”

“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