Following the halting eight months ago of the counter-terrorism powers to stop and search without the need for any reasonable suspicion, the Home Secretary announced that these powers are back, but with some changes. To make the changes effective immediately, Theresa May used an 'urgent remedial order', a type of statutory instrument that is 'made without being approved in draft' and that ceases to have effect after a period of 120 days unless it is approved by each House. Changes similar to this remedial order are part of the Protection of Freedom Bill, which is going to Committee stage this coming Tuesday.
The Terrorism Act 2000 (Remedial) Order 2011 concerns the powers of police officers to stop and search pedestrians and vehicles without needing any suspicion. It replaces sections 44 to 47 of the Terrorism Act 2000 (these are in effect repealed) with a new section 47A. Like the previous sections, for police officers to be authorised to use these stop and search powers, a prior authorisation for a specified area must be in place. A key change is that to give an authorisation, a 'senior office officer' must 'reasonably suspect that an act of terrorism will take place; and consider that (i) the authorisation is necessary to prevent such an act; (ii) the specified area or place is no greater than is necessary to prevent such an act; and (iii) the duration of the authorisation is no longer than is necessary to prevent such an act.' Previously the threshold was much lower as an authorisation could have been given 'if the person giving it considers it expedient for the prevention of acts of terrorism.'
The higher threshold of necessity is clearly an improvement, but how will it be enforced? Authorisations must be confirmed by the Secretary of State to last more than 48 hours and can be for no more than 14 days. Previous Secretary of States have practically rubber stamped section 44 authorisations and nothing is preventing this to happen with the new section 47A ones.
There is no mechanism in place to publish any part of these authorisations. Since 2007, SpyBlog has been 'asking [under the Freedom of Information Act] to be published [to no avail] the bare minimum laid down in the text of the Terrorism Act 2000 sections 44 and 45 and 46 i.e. the time and duration and geographical location of each Authorisation to suspend the normal rule of law regarding Stop and Search Without Reasonable Suspicion.' This continued lack of publication will make it extremely difficult to find out if these new powers are abused in a similar manner to the ones they replace and for those stopped and searched to find out whether the stop and search was lawful.
Much detail about how the Secretary of State intends these powers to be used can be found in 'a robust statutory code of practice' (pdf, 49 pages) containing guidance about 'the exercise of the powers to give an authorisation' and 'the exercise of the powers conferred by such an authorisation'. The Home Office has also published a document containing an explanatory memorandum (7 pages), an equality impact assessment (23 pages) and some 'required information' (7 pages).
Innocents may again be stopped and searched just on the off chance that they are or have 'been concerned in the commission, preparation or instigation of acts of terrorism' as long as a senior officer found it necessary to authorise the use of these powers in the area they happen to be passing by.
Bootnote 1 The Metropolitan Police Authority is running a consultation until the end of the month to find out 'if Londoners want their police officers to continue recording stops and accounts.' Whether this recording continues has been made optional for each police force by the Crime and Security Act 2010. Another change introduced by this act is to reduce the time one can ask for the record of a stop and search from twelve to three months.The latest statistics for stop and search, and stop and account by the Metropolitan Police are for February (pdf).
Bootnote 2 Other powers to stop and search without needing reasonable suspicion include schedule 7 of the Terrorism Act 2000: the power to stop, question, detain (up to nine hours) and search individuals at port and border controls, and section 60 of the Criminal Justice and Public Order Act 1994: the power to search any person or vehicle anywhere – within an authorised area – for offensive weapons or dangerous instruments to prevent incidents of serious violence or to deal with the carrying of such items.