The Law

The Home Secretary says: “Since last Wednesday, I have sought urgent legal advice and consulted police forces. In order to comply with the judgment – but avoid pre-empting the review of counter-terrorism legislation – I have decided to introduce interim guidelines for the police. I am therefore changing the test for authorisation for the use of section 44 powers from requiring a search to be ‘expedient’ for the prevention of terrorism, to the stricter test of it being ‘necessary’ for that purpose. And, most importantly, I am introducing a new suspicion threshold.”

She adds: “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. And officers will only be able to use section 44 in relation to the searches of vehicles. I will only confirm these authorisations where they are considered to be necessary, and officers will only be able to use them when they have ‘reasonable suspicion’. These interim measures will bring section 44 stop and search powers fully into line with the European Court’s judgment. They will provide operational clarity for the police. And they will last until we have completed our review of counter-terrorism laws.”

While the change of rules will come as a victory to photographers, police officers will continue to hold stop-and-search powers under Section 43 of the Terrorism Act 2000. That section, as May points out in her statement, allows officers to search anyone that reasonably suspect of being a terrorist. Two days ago, a young photographer, Jules Mattsson, was stopped under these powers.

Already, Labour Shadow Home Secretary Alan Johnson has hit back at the decision, arguing that it signals a diminishing of police powers. He adds that the European Court’s ruling was based on how the powers were used back in 2005 and that the Labour government had “reviewed and improved” the act.

European court forced decision

May’s decision comes more than a week after the European Court of Human Rights refused a Home Office appeal against an earlier decision that had found Section 44 to be illegal.

The Court wrote to the Government that “the panel of five judges of the Grand Chamber decided on 28 June 2010 not to accept your government’s request that the [Gillan and Quinton v. the United Kingdom] case be referred to the Grand Chamber.”

The Court added: “The judgment of 12 January 2010 therefore became final on 28 June 2010.”

On 12 January, the European Court stated that the use of Section 44 to stop-and-search people is illegal and that the powers lack proper ‘safeguards against abuse’.

The court was hearing the case of Kevin Gillan and Pennie Quinton, who were both stopped during a London-based arms trade show on 09 September 2003. The police were ‘acting under sections 44-47 of the 2000 Act, while (the two were) on their way to a demonstration close to an arms fair held in the Docklands area of East London’.

The European Court found that the two protesters’ rights had been violated under Article 8 of the European Convention on Human Rights. “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 European Court found in its judgment.

It continued: “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 court added that it 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 and found that there was a clear risk of arbitrariness in granting such broad discretion to the police officer.

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.”

Conservative defiance

Already, the new coalition government had announced that it would review the controversial terror laws. Today, May says that while her government couldn’t have appealed the European Court’s judgment, it “would not have done so had we been able.”

The government plans to introduce the Freedom Bill to “scale back” the government’s place in people’s lives. As part of the Freedom Bill, designed to bring back the freedom and civil liberties lost in the past decade, the government intends to reform the unpopular anti-terrorism laws that have constantly been used against photographers.

The Bill intends to strike a balance between protecting the public and ensuring civil liberties are preserved. Over the past few years, and particularly in the last 18 months, Section 44 of the Terrorism Act 2000 has been used to prevent photographers from working in public places. The government says that the Freedom Bill will introduce “safeguards against the misuse of anti-terrorism legislation.”

A victory for photographers

May’s decision is a clear victory for photographers, who have united behind campaigns such as I’m a photographer, not a terrorist, and with the support of the Amateur Photographer and British Journal of Photography magazines – the only country-wide publication to have highlighted the plight of photographers.

“Liberty welcomes the end of the infamous Section 44 stop and search power that criminalised and alienated more people than it ever protected,” says Shami Chakrabarti, director of the Liberty human righs organisation. “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, protest rights and race equality in Britain.”

Human Rights Watch has also hailed the change. “We welcome the decision by the Home Secretary to suspend the use of this abusive power,” says Benjamin Ward, Human Rights Watch’s deputy director for Europe and Central Asia. “The government should now amend the law to allow terrorism searches of vehicles where there is suspicion and then repeal section 44 once and for all.”

Developing…

Home Secretary Theresa May’s full statement:

Mr. Speaker, I would like to make a statement on stop and search powers under section 44 of
the Terrorism Act 2000.

On Wednesday of last week, the European Court of Human Rights ruled that its judgment in
the case of Gillan and Quinton is final. This judgment found that the stop and search powers
granted under section 44 of the Terrorism Act 2000 amount to the violation of the right to a
private life.

The Court found that the powers are drawn too broadly – at the time of their initial authorisation and when they are used. It also found that the powers contain insufficient
safeguards to protect civil liberties.

The Government cannot appeal this judgment – although we would not have done so had we been able. We have always been clear in our concerns about these powers, and they will be included as part of our review of counter-terrorism legislation.

I can therefore tell the House that 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. But neither will I leave the police without the powers they
need to protect us.

Since last Wednesday, I have sought urgent legal advice and consulted police forces. In
order to comply with the judgment – but avoid pre-empting the review of counter-terrorism
legislation – I have decided to introduce interim guidelines for the police.
I am therefore changing the test for authorisation for the use of section 44 powers from
requiring a search to be ‘expedient’ for the prevention of terrorism, to the stricter test of it
being ‘necessary’ for that purpose. And, most importantly, I am introducing 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.

And officers will only be able to use section 44 in relation to the searches of vehicles. I will
only confirm these authorisations where they are considered to be necessary, and officers will
only be able to use them when they have ‘reasonable suspicion’.

These interim measures will bring section 44 stop and search powers fully into line with the
European Court’s judgment. They will provide operational clarity for the police. And they
will last until we have completed our review of counter-terrorism laws.

Mr Speaker, 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.

I commend this statement to the House.