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In the case of Gillan and Quinton v United Kingdom (Application no.4158/05) the European Court of Human Rights found that there had been a violation of article 8 of the Convention on the grounds that the powers of authorisation and confirmation as well as the powers of stop and search under sections 44 to 47 of the Terrorism Act 2000 (“the 2000 Act”) are neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse.
This Order modifies the effect of the 2000 Act by making a number of non-textual amendments. In particular, to remove the incompatibility of sections 44 to 47 of the 2000 Act with the Convention right, article 2 of the Order provides that the 2000 Act is to have effect as if the stop and search powers in sections 44 to 47 of that Act were repealed.
Article 3 of and Schedule 1 to the Order modify the 2000 Act so that it has effect as if new sections 47A to 47C and Schedule 6B were inserted into that Act. Those provisions provide the police with replacement powers of stop and search for the purposes of counter-terrorism. If a senior officer reasonably suspects that an act of terrorism will take place and considers that the stop and search powers are necessary to prevent such an act of terrorism, the senior officer may authorise the use of those powers in an area within the officer’s police force area no larger than necessary and for a period no longer than necessary for that purpose (and for a maximum of 14 days). Authorisations must be confirmed by the Secretary of State within 48 hours if they are to last beyond that period and the Secretary of State has the power to restrict the scope of authorisations. Where an authorisation is in place, an officer in uniform may stop and search a person or a vehicle to search for evidence that the person is a terrorist or that the vehicle is being used for purposes of terrorism, whether or not the officer reasonably suspects that such evidence will be present.
Article 4 of the Order requires the Secretary of State to issue a code of practice in connection with the exercise of the new powers.
Article 5 of and Schedule 2 to the Order make various non-textual consequential amendments to other enactments, including the Police Reform Act 2002 and the Police (Northern Ireland) Act 2003, which make provision for community support officers to have limited powers under the new stop and search powers.
The Order is made pursuant to the “urgency” procedure prescribed in paragraph 2(b) and 4 of Schedule 2 to the Human Rights Act 1998 and comes into force on 18th March 2011. The Order will cease to have effect if, at the end of the period of 120 days beginning with the day on which the Order was made (not including any time during which Parliament is dissolved or prorogued, or both Houses are adjourned for more than four days), a resolution has not been passed by each House of Parliament approving the Order.
Article 6 of the Order provides for articles 2 to 5 of and Schedules 1 and 2 to the Order to cease to have effect if an Act that is passed in the same Session as that in which this Order is passed makes provision to repeal sections 44 to 47 of the 2000 Act. In that case, those provisions of the Order will cease to have effect on the coming into force of such provision. The Protection of Freedoms Bill contains similar provisions to those in the Order relating to powers of stop and search under the 2000 Act. In particular, the Bill includes provision to repeal sections 44 to 47 of the 2000 Act.
Article 6 also provides that any authorisation given under section 44 of the 2000 Act whose duration would otherwise extend beyond the coming into force of the Order ceases to have effect on the coming into force of the Order (that is, on 18th March 2011).
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