Police powers to use terror laws to stop and search people without grounds for suspicion are illegal, the European Court of Human Rights has ruled.
The Strasbourg court has been hearing a case involving two people stopped near an arms fair in London in 2003. It said Kevin Gillan and Pennie Quinton’s right to respect for a private and family life had been violated. It awarded them 33,850 euros (£30,400) to cover legal costs.
Section 44 of the Terrorism Act 2000 allows the home secretary to authorise police to make random searches in certain circumstances. But the European Court of Human Rights said the people’s rights under Article 8 of the European Convention on Human Rights had been violated. The court said the stop and search powers were “not sufficiently circumscribed” and there were not “adequate legal safeguards against abuse”. BBC
Judgment: CASE OF GILLAN AND QUINTON v. THE UNITED KINGDOM (Application no. 4158/05)
…2. Holds that there has been a violation of Article 8 of the Convention;
UPDATE MTPT blog post:
The legality of stop and search
This, hopefully, will curb Police enthusiasm for stopping photographers. The government will need to re-think on this one. I may do a more detailed analysis if I have time…
***
Watching the Iraq Inquiry..Campbell is doing rather well. The panel don’t seem to be probing him that hard.
Charon QC 
[…] the full judgement here and a hat-tip to Charon QC for saving me the effort of searching for it. Watch for a further analysis by him in the […]
Though I sincerely disagree with the Stop and Search laws, it just leaves a very bad taste in the mouth that we have to be told by a foreign court that our domestic proceedings, and by extension our parliament, is illegal.
This is a clear case where the ECHR is overstepping its mark and I sincerely hope the Tories pull us out of it before they start meddling anymore with our domestic treatment of Justice.
Yet again, the British people have the European Court of Human Rights to thank for maintaining their civil liberties. Long may this last. Without recourse to Europe the “police state” might well be upon us completely.
It is a sad reflection on those ELECTED to the House of Commons that they have been a major source of legislation eroding fundamental civil rights. It is rather paradoxical that the unelected House of Lords has often sought to protect such rights. Time after time we see Bills introduced into Parliament with some Minister certifying that the Bill is compliant with the convention when, in fact, it is plainly not compliant. Unfortunately, people still have to fight through the domestic courts before the case can get to Strasbourg. Despite the HRA 1998, the domestic courts are far too in awe of Parliament to have the courage to make more declarations of incompatibility and to put the onus back on Ministers to do better.
13th Spitfire… I am a bit puzzled that you accept that our stop and search laws are wrong/illegal but object to the ECHR telling us. The ECHR is not, strictly, a foreign court, of course. As we actually designed the convention with others and subscribe to it, the conventuion is part of our law and by extension, the court.
I am grateful that the ECHR looked at this objectively within the ambit of the convention.
The Tories can’t take us out of of the European Convention or change the law on Human Rights without taking us out of Europe… I didn’t even want to begin to think about what that could mean for our economy already battered by the banks – the banks, note… not the politicians.
We shall see…
Obiter J – I think you are right. I can see no reason, for a progressive judiciary, applying the law of Britain, not to be a bit more robust. Things are changing….but Oh, so slowly.
[…] and Quinton v United Kingdom (4158/05) (press release here). You can find out more about it at Charon QC and MTPT’s blogs. I haven’t finished reading the judgement (and may blog on it when I […]
Spitfire, how is the ECHR overstepping the mark? What other role can they have?
Charon – thank you. Of course, I well understand that the judges will tread carefully. If they did not, there are far too many who would claim that the judges had become political. I like your words – “a bit more robust.” I would go with that.
The European Court has, in effect, struck down Section 44 of the Terrorism Act 2000 (although the judicial activist lobby seem adverse to admitting that judges now strike our laws down).
While I agree with the sentiment of the ruling, is it not for our elected Parliament to curb the excesses of the executive? Today merely reminds us of the fact that the Commons is no longer up to the task.
The price we pay for a supine, spineless legislature is not merely an overbearing executive. It is that responsibility for holding it in check passes from those we can elect directly ourselves, to those we must hire expensive lawyers to plead before.
Yes we designed and subscribe to it but not in the sense you propose. In 1951 Britain signed the European Convention on Human Rights. In 1960 British citizens were able to bring cases to the European Court of Human Rights. Finally in 1998 the HRA was enshrined in British law. Up to that point it was not actually law but referred to but it did not take precedence over British law.
Of course the tories can take us out of ECHR without taking us out of the EU – why on earth would not that be possible? The ECHR and ECJ are linked but as of yet the EU has not signed up to the ECHR merely its member states. Unless I have not completely cocked this up, Charter of Fundamental Human Rights does not include the European Convention on Human Rights. But even so it appears that a good debate is to be had out of this since we have wildly differing opinions on the EU.
13th Spitfire – You make a good point(s)… debate is always good…. and I am always pleased to see people commenting on a blog…rather than on twitter as now tends to be the case.
I have a mate visiting tonight – Rioja is being taken… so I shall, if I may,respond on the morrow.
We may have different opinions on the EU… and mine do tend to shift about a bit… but I do think the Convention is helpful. If Tories do replace Human Rights Act… it is likely to be with something closely approximate?
Why thank you 🙂 I like good debate to and refuse to go into twitter.
Oh yes, clearly if they do replace the HRA then they will have to replace it with something but most likely something which cannot be so easily manipulated by every piece of low life scum who proses that his or her human right has been violated, when the prison officers removed their cocaine (that actually happened). Or the countless foreign prisoners who cannot be removed because of their human rights and so on.
It will have to be replaced but it will most likely be formulated in such a manner that only proper Human Rights Violations (torture and genocide or the like, I reckon) could call upon the act to do justice to a person or peoples which the law has failed to protect.
TA 2000 s44 remains law in the UK until Parliament changes it. Generally, the UK does eventually respond so as to (hopefully) make the law compatible. Might take some time however. We are now over a year since the Marper judgment (one of the few uanimous Grand Chamber decisions) and we are at the stage where a bill is wending through Parliament. The bill only goes for what, in the government’s view, is the minimum to meet the European judgment.
Parliament curbing the executive. I wish. Largely, the latter controls the former. The Commons is unfit for purpose.
The HRA 1998 does not enable human rights to take precedence over English law. The Act just enables the senior courts to make a declaration of incompatibility. Parliament may deliberately legislate contrary to the Convention. The HRA 1998 is a cunning balance between applying the convention and retaining parliamentary sovereignty.
It is possible to leave the EU and the Lisbon Treaty makes specific provision for a member state to do so. Whether it is wise is another matter but that is a political and economic question.
Lisbon also enables the EU as a legal entity to accede to the Convention. At the moment – as you say – it is only member states which have acceded. However, accession to the convention seems to have reached the status of being a requirement of membership (e.g. debate re Turkey). The UK has not signed up to the EU Charter of Fundamental Rights.
Personally I am very glad that the UK is both in the EU and has acceded to the European Convention on HR. The first offers economic benefits and other opportunities which we would not otherwise have. The latter has been, in so many ways, a civilising influence on English law.
I will await Charon QC’s reply with interest.
Spitfire, the violations you say should be subject to legal protection:
“only proper Human Rights Violations (torture and genocide or the like, I reckon) could call upon the act to do justice”
are the very reason why “countless foreign prisoners … cannot be removed because of their human rights”. They can’t be removed because we know they’ll be subject to torture.
Well yes if you live in ignorance land that is probably true but in the real world it is not. What you are proposing then is that up until 1997 Britain shipped of anyone undesirable without any regard for their human rights, to some forlorn without any respect for human rights. In effect up until 1997 Britain was a tyrant. Up until 1997 we didn’t really care if they got tortured or raped as long as they were of British soil.
Is that honestly what you are saying? You think we need a HRA which makes a mockery of the entire judicial system to protect the human rights of prisoners? Pray, what happened before the HRA – surely you cannot uphold my devil’s advocate doom scenario proposed above?
As we are clearly fellow citizens of that land then, I won’t bother to argue with you. It would be an affront to national solidarity.
Hmm I think I came across a bit rude, I do apologise for I do honestly want to know what you have to say on this for it is a very interesting issue.
[…] I blogged about this the other day – the comments are interesting…and later today, I am doing a short podcast on the issue with Matthew Taylor of the MTPT blog – a practising lawyer. […]
@13th spitfire “Well yes if you live in ignorance land that is probably true but in the real world it is not. What you are proposing then is that up until 1997 Britain shipped of anyone undesirable without any regard for their human rights, to some forlorn without any respect for human rights.”
Just a note of agreement. Prior to 1997 we had (perhaps still have) the ‘principal of legality’; according to Lord Hoffmann (forgive my indolence in not citing the cases, bailii provides them if you look in the cases section with that ‘exact phrase’) the HRA does the same job.
Oh and the date should be 2000 rather than 1997. Although it is the HRA 1998, it didn’t come into play ’til 2000.
Don’t mean to be a Which Tyler – leader of the pedants revolt – but there you are.
bagehot was spot on when he refuted the fiction that there are 3 arms of the state. has england ever had two discrete groups able to be classified as the executive and legislature.
the whole mythical trinity was garbled from montesquieu (a french model extrapolated from aristotle who while being no mug was hardly in a position to say much about england). the obsession of those who teach our nascent lawyers about the constitution with dicey then calcified this nonsense which gets parroted at large.
the judiciary is all we have to keep government in check (whether one likes the way they do it or not) and the ECtHR is an extension of our domestic judiciary and IMHO a rather welcome one as they are less prone to be affected by each passing uk government.
i’m sorry to say it again but the whole point of human rights is that they are and must be applicable even (especially) to those ‘we’ do not like. and if anyone doesn’t think that is the fundamental reason why they are a safeguard for all of us, then i would have to say they are missing the point. pace niemoeller.
In response to Obiter J and other commenters…
1. We appear to have a ‘rump’ parliament in two senses – firstly in the current ‘political’ sense of being discredited but, more importantly, a Commons with few real powers. Mps, it is said, are merely slaves to the Party and it is a brave MP who goes against the party whip. Most real government goes on behind closed doors…sometimes, even, it is believed, on sofas. The Select Committees do have power and we may well see an increase in the use of their power after the election.
2. We do, of course, have the right to leave the EU. I cannot see the Tories doing so. I cannot see UKIP getting into power and doing so. In my view, we cannot survive as a serious economy if we do leave Europe. The economic life of Britain is linked inextricably to Europe. It would be difficult and expensive to unravel it.
3. I do view the European Court of Human Rights as part of our judicial apparatus. As Obiter J pointed out – the UK government does, eventually, accede to ECHR judgments. We have already seen the home secretary, Alan Johnson, express his ‘disappointment’ but in the same breath state that s.44 continues to be law, pending appeal to the Grand Chamber. This is rather ironic given that the police themselves have been issuing notices to their officers to cut back on s.44 usage.
4. We have to have the ability to detect and deal with real crime, real terror. Terrorism is now part of our lives. I suspect it will be for another 50 or more years. The problem lies not in the existence of a power – but in the indiscriminate and thoughtless use of such power. If the police officers had used their brains we would not have endless stories about tourists being told to stop photographs of iconic buildings – as pictured on Google, guide books, and, in the case of parliament, on the Parliament website. We would not have stories about perfectly innocent photographers being hassled by jobsworths. Stop and search laws are necessary in defined situations. The lack of ‘reasonable and intelligent suspicion’ is a problem.
5. I agree with the point that our judiciary is a brake on the executive – but a judiciary ever subservient in theory and in some reality to the higher authority of parliament. Perhaps, one day, if we do get a Bill of Rights – our supreme court could enjoy greater powers, along the lines of the US Supreme Court? I am not so sure that is a good thing for then we have control by a few old men and women. The judges are being more adventurous.
6. Curiously, publicity is a further break to the abuse of power. In the internet era, twitter, blogs, flash mobs, communications etc are very fast. We saw what happened in the Trafigura case on twitter. The Court of Public Opinion (as Harriet Harman described it) cannot over ride parliament or the judiciary – but it can kick up a fuss when the fuss generated is genuine, real and reasoned.
Our structure of government, politics, judiciary, the rule of law is wonderfully imperfect – that is both a strength and a weakness. There is always going to be fudge, a lack of clarity – but far rather that than the chilling codes of China or soviet Russia or… come to that… the Code Napoleon!
It is wonderful that the UK seems to be in the slow painful process of acquiring a real Constitution (i.e. something other than sovereignty of Parliament, which for the last century or so has been equivalent to elective dictatorship).
A little embarrassing that it had to be via Europe, but beggars can’t be choosers.
I find it hard to attack any organisation for doing something right, particularly so to attack the organisation doing something right in favour of another organisation that’s doing something wrong. I believe in the principle of choosing your battles and it’s just not a great opportunity to say that the British Parliament needs more power and European bodies need less.
I have to say that Gillan is not a great example of the decadence of Europe impinging on our basic rights to be free of external meddling. The idea that the police can use anti-terrorism laws to stop you anywhere in a certain, secret area – Greater London, for example, for not doing anything wrong requires mental gymnastics for a lot of people. The fact that these anti terrorism powers haven’t yet caught a terrorist surely doesn’t help.
Tomorrow we can complain that the constitution of the EU really is a bit messed up, the Council and the Commission really do have so much more power than the European Parliament and self rule is slipping away from our Parliament but just for a minute or two Parliament should be on the naughty step for what it’s using what power it still has to do.
David W – yes, the late Lord Hailsham’s famous phrase “elective dictatorship” was said back in 1976 and was a superbly prescient comment. We probably reached such a state of affairs under Margaret Thatcher after the 1982 Falklands War when she won the election with a large majority. We reached it again when Labour were elected with a massive parliamentary majority. Such a majority is, irrespective of political party, extremely unhealthy particularly in a system where, in reality, the executive largely controls the business of parliament. The Terrorism Act 2000 was passed when Labour had a big majority.
The problem we face in our constitutional arrangements is how to avoid the elective dictatorship which stems from the backing a large and subservient majority in the Commons. I do not claim to know the answer and I have doubts that proportional representation is the perfect answer though, if properly implemented, it ought to produce a parliament more reflective of the actual voting in the country.
As things stand, I am glad that we have the ultimate check of the European Court of Human Rights. Regrettably, the English judiciary did not seem to see that section 44 was anything more than a minor irritant to those stopped. They appeared to ignore the fact that it can be distressing and embarrassing and the person walking the street has no idea that he has entered a designated area. Above all, the person who adopts a “get stuffed” uncooperative attitude might find himself on the end of a 6 month prison sentence!
It is disconcerting that the case got as far as Europe but we are not beggars. It is, in my view, something to be proud of that our country led the movement for the European Convention on Human Rights. It was not forced upon us as some try to argue. We were willing to embrace it and it has now become more embedded in the political and legal structure of Europe. If the convention acts as a check on elective dictatorship then it surely deserves our support.
@ObiterJ:
There are some pretty obvious fixes for the parliamentary subservience to Government, depending on how much power one wants to give parliament. At the risk of going off-topic, some are (in roughly descending order of utility):
* expel the payroll vote from Parliament. If an MP (or Lord) wishes to join the Government, make him resign his seat first. (ministers could still be subject to questions, confidence votes, etc., they just wouldn’t be able to vote in them themselves)
* reduce the number of MPs and increase their compensation so that the rewards for MPs and ministers are comparable
* give the Lords more legitimacy — but that’s a whole other topic.
* creation of ministerial offices and government departments should be by statute, not royal prerogative (no more Ministers without Portfolio, Chancellor of the Duchy of Lancaster, etc.)
* ministerial appointments could be subject to parliamentary approval (should cut down on the number of reshuffles done at the PM’s whim).
* fixed-term parliaments of four years, unless the government loses a confidence motion. To protect against contrived no-confidence motions, make a rule that a minister in a government that is removed by such a motion cannot be reappointed for some fixed period (e.g. two years).
I do not think anyone disagrees with the gist of the act only its execution which have led to some of the most embarrassing and ridiculous (not to say counter productive) legal cases in the history of England herself.
I think there’s a general consensus that s.44 is broadly open to abuse due to the low standard it requires. I agree that if it was used as it was envisioned – small, temporary areas specifically suffering imminent terrorist threats it’d be entirely fine but you don’t need to be psychic to foresee the chances of it creeping out from there. Although I do think you’d need to be pathologically cynical to have predicted how far it crept out in reality.
Failure to put sufficient controls on the potentially arbitrary use of executive power is a Parliamentary issue. The police might have done the abusing but what they did was expand to fill the limits of their powers under the act, that’s why it needed a human rights challenge rather than asking if ultra vires.
This is an outstanding comment thread; so sorry I missed the debate on Thursday!
Thanks JackofKent for alerting me to this… and I am also sorry to have missed it.
My two Fourpenneths.
1st, The European Court is designed only to deal with the bare minimum rights which European states agree is the basis of civil society. As such it should never in practice be ‘overstepping its mark’. In the present case, it is truly disheartening that it clearly didn’t overstep its mark. Therefore, in my view, the court is necessary.
However, I think the court has had the negative effect of causing governments, particularly ours, not to assess the impact on Civil Rights themselves of new legislation but rather simply to attempt to assess whether the legislation will be Human Rights Act compliant. This, perhaps unintentional, example of thoughtspeak, has resulted in a race to the bottom.
That so much of our legislation dips below this minimum is a scandal.
[…] creates a serious dilemma for anti-EU libertarians, as shown by the response of anti-EU blogger 13th Spitfire in the (fascinating) comments thread on law blog Charon QC coverage of the ruling (via the rather […]
In response to 13th Spitfire, being signed up to the ECHR is a condition of EU membership under the Copenhagen criteria. And since our EU membership was ratified by Parliament, a referendum and thirty years of people not voting for an anti-EU political party, I’d say it was pretty democratic too.
Wow, I got linked to Nosemonkey’s Eutopia. I find that absolutely hilarious, though I must add we have had our run-ins previously on matters law related.
Anywho,
Anthony Zacharzewski, as I stated before the ECHR and ECJ are linked but as of yet the EU has not signed up to the ECHR merely its member states. Unless I have not completely cocked this up, the Charter of Fundamental Human Rights does not include the European Convention on Human Rights.
The European Convention on Human Rights (ECHR) was signed in 1950 under the auspices of the Council of Europe (CoE). The Council of Europe is a separate from the European Union, although it is a condition of membership of the EU that all Member States must also be members of the CoE and ratify the ECHR. The CoE is made up of more than 40 European Countries, including Russia, Bosnia & Herzegovina, Serbia and Montenegro. The ECHR is applied by the national courts of each Council of Europe country and by the European Court of Human Rights (‘ECtHR’) in Strasbourg.
The EU Charter was signed in 2000 and is a text of the European Union, which has 25 Member States. The main court of the European Union is the European Court of Justice in Luxembourg. The EU Charter includes all the civil and political rights contained in the ECHR, but also contains a number of other rights, including economic social and cultural rights.
The relationship between the ECHR and the EU Charter is complicated because all the 25 members of the EU are also members of the Council of Europe. Indeed, the new Constitutional Treaty directs the EU itself to accede to the ECHR so that the ECHR would also take effect under EU law (for more about this see the answer to question 12 below). But for the time being, the ECHR and the EU are separate systems of law with separate courts: the ECtHR in Strasbourg and the ECJ in Luxembourg.
Now, this is currently as matters stand. If the Conservatives win power this year, there will be a war over the ECHR as much is clear. The shadow justice secretary Mr. Grieve has said he does not want to pull Britain out of the ECHR – the new backbenchers thoroughly disagree. If it comes to pass that the backbenchers win this one, I cannot see the EU kicking Britain out of the EU merely because it has not enacted a legal document of which it was one of the founding members. As for your views of on our accession to the EU, I would say they are at best misinformed.
Again though, great debate, and hilarious that I should be linked to Mr. Nosemonkey.
[…] S44 TA2000 for the purpose of interdicting photography in public places. That has admittedly been ruled illegal under ECHR by the European Court in Strasbourg, but HMG assure that is in the public interest too and police say it is a vital part of the fight […]
[…] and PCSO’s deploying S44 TA2000 for the purpose of interdicting photography in public places. That has admittedly been ruled illegal under ECHR by the European Court in Strasbourg, but HMG assure that is in the public interest too and police say it is a vital part of the fight […]
The point is, if we come out of the European Court Of Human Rights, and have no remedy to protect our Civil Liberties we would be in a Police state. And we would all have to re-move our consent to be governed, just so we can re-claim our unalienable rights. A maxim in law states “If you fail to claim your rights, it is assumed in law that you have none”. Do you want rights that know one can take away, or do you want privileges and benefits?