Equality and Human Rights Commission Parliamentary Briefing Schedule 8 Anti-Social Behaviour, Crime and Policing Bill Lords Committee Stage briefing

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1








Equality and Human Rights Commission

Parliamentary Briefing


Schedule 8

Anti
-
Social Behaviour, Crime and Policing Bill


Lords Committee Stage briefing


November 2013



Contact details:

Parliamentary lead:

Finola Kelly

Tel: 0207 832 7826

Finola.Kelly@equalityhumanrights.com



Legal lead:
Katy Reade

Tel: 0207 832 7835

Katy.Reade@equalityhumanrights.com


2



CONTENTS


1.

Introduction


2.

Commission

s analysis of Schedule 8



3.

Amendments to Schedule 8


3.1.

Amendment 57

3.2

Amendment 58

3.3

Amendments 59
-
61

3.4

Amendment 62

3.5

Amendment 63

3.6

Amendment 64



4.

Analysis of other provisions in Schedule 8


4.1

Examining Officers


4.2

Power to search persons


4.3

Biometrics


4.4

Review of detention under Schedule 7






3


1. Introduction


The Commission has long
-
established expertise in the issues posed by the
use of a wide range of stop and search powers,
including:




extensive work

on consultation responses and parliamentary briefings
on s.44 of the Terrorism Act 2000;




research and enforcement work relating to police forces' use of s.1
Police and Criminal Evidence Act (PACE) 1984 (including producing
the
report 'Stop and Think: A critical review of the use of stop and
search powers in England and Wales' in 2010) and forging two s.23
agreements under the Equality Act 2006 with specific forces to ensure
a change of practice and compliance with legal obligati
ons; and




extensive research and enforcement work on the use of the stop and
search power pursuant to s.60 of the Criminal Justice and Public
Order (CJPO) Act 1994.


In addition, the Commission also commissioned independent research
1

on

The Impact of
Counter
-
Terrorism Measures on Muslim Communities',

published in Spring 2011
,

which examined the impact of Schedule 7 in some
detail. Apart from our legal concerns about Schedule 7 and its potential to
violate human rights and equality laws, the indication
s from Muslim
participants in this research across the focus groups and interviews with
community groups and practitioners in the case study areas were that
Schedule 7 stops at airports are perceived to have a widespread negative
impact on Muslim communiti
es.
2



In December 2012, the Commission made a submission to the Home Office
Consultation on the Schedule 7 powers
3

and in June 2013 made a further






1

EHRC Research Report 72. This research was undertaken by

Tufyal Choudhury and Helen Fenwick at

Durham University.

2

Ibid, p. 22.

3

This submission can be found on the EHRC's webpage at:

http://www.equalityhumanrights.com/uploaded_files/Consultation_responses/ehrc_
-
_review_of_the_operation_of_schedule_7_consultation_response_6_dec_2012.pdf

4

submission to the Joint Committee on Human Rights in relation to its
scrutiny of the Anti
-
Social Behavio
ur, Crime and Policing Bill.
4


The Commission recognises the importance of stop and search powers as a
tool for crime
detection and
prevention. We
fully

acknowledge that Schedule
7 forms a part of the UK's counter
-
terrorism strategy, put in place in order
to
protect in
dividuals in ports and airports,
and
on key modes of transport that
have been utilised by terrorists in the past

and also to prevent

to prevent
terrorists progressing beyond their entry point
.

However,
we share with
others the view that the
legal form and practical exercise of these powers
should be complia
nt with equality and human rights legislation. To help
achieve that, it is
essential that the
powers
are used appropriately and
proportionately and in a non
-
discriminatory manner. In our
I
mpact of
C
ounter
-
T
errorism
M
easures
on Muslim Communities
report we noted that
the interviews suggested that this power is eroding Muslim communities


trust and confidence in policing and we identified the need for greater
transparency and accountability
around its use, and that
transparent

data on
the precise scale of the use of Schedule 7 is needed.
5



Clause 132 and Schedule 8 of the Anti
-
Social Behaviour,

Crime and
Policing Bill (hereafter 'the bill') bring forward changes to the provisions in
Schedule

7 of the Terrorism Act 2000 for stopping, examining and detaining
people at ports. This follows the government consultation on the Schedule 7
power in 2012.



The Commission's analysis, which we submitted to the consultation, is that
a power to stop, det
ain and question an individual about their political and
religious beliefs and activities, as well as those of others in their community
and family, without requiring reasonable suspicion or other limitations, is too
broad, lacks sufficient safeguards, and

could be a breach of the requirement
that such an interference be

prescribed by law AND

in accordance with the
law

,

pursuant to European Convention of Human Rights (

the ECHR

)



4

This briefing can be found on the EHRC's we
bpage at:

http://www.equalityhumanrights.com/legal
-
and
-
policy/parliamentary
-
briefings/submission
-
to
-
the
-
joint
-
committee
-
on
-
human
-
rights
-
legislative
-
scrutiny
-
2013
-
2014/

5

Opcit, note 1, pp.28
-
29.

5

Articles 5 and/or 8.
6

This point has also been made by the Joint Committee
o
n Human Rights.
7



We therefore invite the Government to consider inserting a reasonable
suspicion requirement into Schedule 7
to come into effect
after 1 hour. This
is in conjunction with amendments to the powers to compel people to
answer

questions set out in section 3.1 below and the reduction in the time
limits on examination without detention and on detention set out in section
3.2 below.



2. Commission

s analysis of Schedule 8


The government

s proposed amendments contained within Schedule 8 of
this bill would introduce some restrictions to the broad power to question
and detain, and extend certain safeguards to those who are detained under
Schedules 7 and 8 of the Terrorism Act 2000.

These ch
anges are welcome
.


But even as amended, Schedule 7 powers would still lack fundamental
procedural protections, such as a requirement of reasonable suspicion that
would enable the powers to meet the requirement to be
'prescribed by the
law'

and '
in accor
dance with the law
' pursuant to Articles 5 and 8 of the
ECHR. In section 3 below, we are proposing amendments to ensure further
protections will be included in the bill to address our concerns, and in
section 4 we comment on the proposals in the Bill for a
mending Schedules
7 and 8 of the Terrorism Act 2000.



3.

The Commission’s Amendments to Schedule 8


3.1.

Power to stop, question and detain


Amendment 57

Page 171, line 21, at end insert


“(4)

In paragraph 2(1) after “to whom this paragraph applies”
insert “only”.




6

Response of the ERHC to the consultation on the Review of
the Operation of Schedule 7 (EHRC
December 2012)

7

JCHR Legislative Scrutiny: Anti
-
Social Behaviour, Crime and Policing Bill. Fourth Report of Session
2013
-
14 (HL paper 56 . HC713)

6

(5)

After paragraph 2(4) insert


“(5)

The Secretary of State shall collect on an annual
basis the records of all examinations and detentions,
including information on the protected characteristics
under the Equality Act 2010 of those bei
ng examined and
detained, and reports of all reviews of detentions for the
purposes of monitoring and statistical analysis.”

(6)

In paragraph 5 after “A person who is questioned under
paragraph 2 or 3”, for “must” substitute “may”.

(7)

After paragraph
5 insert


“5A
A person cannot be compelled to answer questions unless the

person is arrested pursuant to section 41 of the Terrorism Act.””

This amendment

will

ensure that
:




Sche
dule 7 powers cannot be used, inappropriately that is,
where the
dominant
purpose is to gather general intelligence, or evidence for the
Security Services or others, to use in legal proceedings that are
beyond the scope of the statutory purpose of the power, namely to
assist the examining officer to determine for him or herself
whether a
person appears to be ‘
concerned in the commission, preparation or
instigation of acts of terrorism’
.




there is adequate ongoing monitoring and analysis of the use of the
power; and




no individual can be forced to answers questions under the
threat of
criminal sanction unless they are arrested as a suspected terrorist
who is or has been concerned in the commission, preparation or
instigation of acts of terrorism.



Background to this amendment


Purpose of questioning


The Commission's legal
analysis is that statements made by individuals
during Schedule 7 stops cannot lawfully be relied upon in Control
Order/Terrorism Prevention and Investigation Measures (

TPIM

)
7

proceedings nor in asset freezing proceedings because it is not the statutory
p
urpose of Schedule 7 to gather information to inform such actions. That
should be made clear in Schedule 7 of the Terrorism Act 2000. This has not
been addressed in the bill. This amendment adds that safeguard by
ensuring that Schedule 7 powers should not

be used where the dominant
purpose is to gather general intelligence, or evidence for the Security
Services or others, to use in legal proceedings that are beyond the scope of
the statutory purpose of the power, which is to assist the examining officer
to

determine for him or herself whether a person appears to be

concerned
in the commission, preparation or instigation of acts of terrorism

.



Collection of data for monitoring purposes


The Commission is concerned that there is no statutory requirement to
centrally record and monitor the self
-
declared characteristics (as listed in the
Equality Act 2010) of those who are stopped and questioned pursuant to
Schedule 7, to ensure it is not be
ing used in a discriminatory way.



The current draft Code of Practice requires that a record of the number of all
examinations and detentions should be held centrally for statistical
purposes, including reference to self
-
declared ethnicity. The Code
should be
amended to include all the protected characteristics identified in the Equality
Act 2010 that may be used for purposes of identifying individuals for
questioning. This point has also be
en

made by the JCHR.
8

. On that basis,
this amendment explici
tly sets out an obligation on the Secretary of State to
collect data on examinations and detentions and reports of all reviews so
that the use of the power can be satisfactorily monitored and reviewed.


Power to compel people to answer


The power to
compel people to answer questions, backed by the threat of
criminal punishment and up to 51 weeks imprisonment, is an unusually
extensive power, and we are aware of no similar powers. Therefore, we
propose this should only be allowable if the person stoppe
d under Schedule
7 is arrested pursuant to section 41 of the Terrorism Act
.






8

JCHR Legislative Scrutiny: Anti
-
Social Behaviour, Crime and Policing Bi
ll. Fourth Report of Session
2013
-
14 (HL paper 56 . HC713)

8

It is quite different to the other instances in which the courts have
considered compulsory powers to answer questions such as in the case of
company directors. Individuals who ha
ve become company directors or
involve themselves in financial dealings can be required to provide
information in relation to the affairs of the company.
9




Under Schedule 7, there are no restrictions on the questions that can be
asked, save that the purp
ose must be to ascertain whether the individual
appears to be someone who is or has been concerned in terrorism. That
can lead to searching and highly personal questions being asked about
religious beliefs and practices, and the activities of family membe
rs and
acquaintances. The power to require people to provide intimate details
about themselves, and be liable to criminal punishment if they refuse, is
quite different, and much more intrusive, than a power to stop and search.


The proposed amendments
remove the compulsion to answer questions
unless that person is arrested. The Commission is of the view that it should
be stated in the statute and made clear to Examining Officers in the Code of
Practice that they cannot compel a person who they suspect o
f involvement
in terrorism to answer questions. They must cease questioning pursuant to
Schedule 7 if they form the suspicion of criminal activity. The person can
then be arrested and questioned with the protection provided by the criminal
process but cann
ot be compelled to answer questions pursuant to Schedule
7.



3.2

Time Limits on examination without detention and on detention


Amendment 58


Page 171, line 30, at end insert


“(2A)

A person questioned under paragraph 2 or 3 may not be

detained under paragraph 6 unless the examining officer has

reasonable grounds to suspect that he is a person falling within

section 40(1)(b).”





9

see, for example,
Saunders v UK
(1997) 23 EHRR 313

9

This amendment to Schedule 7 of the Terrorism Act 2000 would ensure that
there is no power to detain and ques
tion for more than 1 hour, unless the
Examining Officer has
by that stage formed
a reasonable suspicion that the
person s/he is questioning is or has been concerned in the commission,
preparation or instigation of acts of terrorism.


This amendment should

be read in conjunction with the additional
amendments to the bill proposed by the Commission concerning the
removal of the compulsion to answer questions and the reduction of the time
limit on examination without detention or on detention
.


This would al
so mean there is a requirement for reasonable suspicion
before some of the more intrusive powers under Schedule 7 are
exercisable, such as detention, strip searches etc.


Background to this amendment


The purpose of questioning and associated powers under

Schedule 7 of the
Terrorism Act 2000 (the Act) is to determine whether a person appears to be
someone who is or has been concerned in the commission, preparation or
instigation of acts of terrorism. The powers, which are additional to the
powers of arrest

under the Act, should not be used for any other purpose.


The Commission recognises the importance of stop and search powers as a
tool for crime prevention. We acknowledge that Schedule 7 forms part of the
UK's counter
-
terrorism strategy, which was put in

place in order to protect
individuals in ports and airports and on key modes of transport that have
been utilised by terrorists in the past. However, these powers have the
potential to
not fully complying with
human rights
legislation
and it is
therefore
essential they are used appropriately and proportionately,

and in a
non
-
discriminatory manner.


On that basis, it is a matter of concern that the power to stop and detain
individuals and to subject them to potentially highly intrusive questions about
their

political and religious beliefs and activities, as well as those of others in
their community and family,
without any reasonable suspicion
, remains
unchanged. The Commission's view is that that a power which allows for
10

the detention of a person for long
periods and also for compulsion to answer
questions should have a requirement for reasonable suspicion.
10



3.3

Amendments 59
-
61


59



Page 171, line 32, leave out “6” and insert “3”

60


Page 171, line 37, leave out first “6” and insert “3”

61


Page 171,
line 37, leave out second “6” and insert “
3”


This amendment would reduce the maximum period of examination to 3
hours (rather than the 6 hours proposed) and would better meet human
rights obligations, without affecting operational effectiveness.


Backgro
und to this amendment


Paragraph 2 of Schedule 8 removes the current nine hour maximum time for
questioning under Schedule 7. Paragraph 2(3) proposes a new paragraph
6A that provides that a person may be questioned for up to one hour under
paragraphs 2
and 3 of Schedule 7. If the examining officer wants to question
them for more than one hour, the person will have to be detained under
paragraph 6 of Schedule 7, which triggers the safeguards contained in
Schedule 8 to the Terrorism Act 2000. The Bill prov
ides that persons cannot
be detained under paragraph 6 for more than 6 hours.


We note that between 1 January 2009 and 31 March 2012 only 3% of
examinations continued for over one hour. Only 1 in 2000 examinations
lasted more than 6 hours.
11

We therefore pr
opose the amendment to
schedule 7 proposed in Schedule 8 of the Bill is changed from 6 hours to 3
hours.


3.4

Power to make and retain copies


Amendment 62

Page 172, line 29, leave out paragraph 4




10

Response of the ERHC to the consultation on the Review of the Operation of Schedule 7 (EHRC
December 2012) p.12 para 10

11

Reference from the
Home Office consultation document: Review of the operation of Schedule 7: A
Public Consultation' Sept 2012, p.5.

11

Paragraph 4 of Schedule 8 inserts a new paragraph 11A enabling
examining officers to copy anything which is given to them or is found during
a search and to keep a copy of such material for as long as it is necessary
for the purpose of determining whether
a person falls within s.40(1)(b) (is or
has been concerned in the commission preparation or instigation of acts of
terrorism).


This is a very wide power, which could lead to sensitive personal data being
retained for indefinite periods of time. Even with

a reasonable suspicion that
the information retained may prove that the person is concerned with
terrorism, this power
has the clear potential
to infringe article 8 rights of
persons examined under schedule 7, because of its highly intrusive and
open
-
ende
d nature. In addition, even if further safeguards were
implemented, such as limits on the length of time the data could be retained
and prohibitions on sharing the data, there
is still the potential for there
to be
breaches of article 8 resulting from the

retention of the data. Therefore, the
Commission proposes that this new provision should be removed from the
bill.



3.5

Right of person detained to have someone informed and to
consult a solicitor


Amendment 63

Page 173, line 6, at end insert


“(1A)

In paragraphs 6, 7, 8, 9, 16, 17 and 18, for “detained”, in each
place, there is substituted “examined or detained”.”

Currently the
entitlement
conferred
by paragraph 7 of Schedule 8 to
consult
a solicitor only applies to persons detained at a police s
tation or places
designated as such. This amendment would extend this right to persons
examined, as well as detained,

under Schedule 7.


Background to this amendment


Whilst the Commission welcomes the government provision which confers a
right to consult

a solicitor for people detained in certain locations,

other than
police stations,

we feel that it does not go far enough in affording protection
to the individual in what is an intrusive situation. Those stopped and
12

questioned under Schedule 7, but not f
ormally

detained

, are not entitled to
legal advice or accorded other rights. Unless amended (para 3.4 above), the
individual being questioned cannot leave as they are committing a criminal
offence if they refuse to answer questions. Therefore the right
to consult a
solicitor should be available immediately when an individual is stopped and
examined under Schedule 7. Where there are no grounds of urgency or
other imperative reasons for limiting access to a lawyer, it should be
possible for questioning to
await the arrival of a lawyer, if one has been
called and is on their way.


We note the recent Administrative
Court
decision in the case of Elosta v The
Commission
er of Police for the Metropolis
,
in which the Court held that

it is
unlawful to restrict a person who has been detained at a port or airport
under S
chedule 7 of the Terrorism Act to only being entitled to have legal
advice from a solicitor via telephone prior to a police interview, rather than
having the right to hav
e a solicitor present in person during the questioning
where the detainee has specifically asked for that greater form of
protection
.
12



We endorse this decision and call on the Government to amend Schedule 8
of the Terrorism Act and the Code of Practice to reflect this decision.


3.6


Biometrics


Amendment 64


Page 173, line 33, at end insert


“(1A)

In sub
-
paragraph (1), the words “Sch
edule 7 or” are omitted.”

This amendment would prohibit the collection of non
-
intimate DNA samples
without consent from people who have not been arrested or charged.


Background to this amendment


The power to take non
-
intimate DNA samples without arrest or charge
remains unchanged and should be repealed in light of the article 8 privacy



12

Regina (Elosta)

v
Commissioner of Police of the Metropolis (Law Society and another intervening),
[
2013] EWHC 3397 (Admin);


[2013]

WLR

(D)

422, 6 November 2013.


13

implications of its collection and retention, particularly when an individual
has not been charged with an offen
ce and no reasonable suspicion is
required for their examination and detention.


Currently under Schedule 7 a non
-
intimate DNA sample may be taken
without the individual

s consent but only at a police station with the authority
of a superintendent. We pro
pose that DNA samples should not be taken
unless the individual is arrested under section 41 of the Terrorism Act
13

and
then has the protection of the criminal law.


4.

Analysis of other provisions in Schedule 8 of the Anti
-
Social

Behaviour, Crime and Po
licing Bill

4.1

Examining Officers

P
age 170, paragraph 1
,

lines 35
-
36,
sub
-

paragraph (2)


1 (2) In paragraph 1(1)(b), after “officer” there is inserted “who is

designated for

the purpose of this Schedule by the Secretary of

State”.


The Commission
supports this proposal as it limits the scope of the powers
slightly, and brings the powers of immigration officers under the Schedule
into line with those of customs officers.


Background


This proposal states that immigration officers will only be able to exercise
the powers in Schedule 7 if they are designated for this purpose by the
Secretary of State.


P
age 171, paragraph 1,
lines 1
-
21,
sub paragraph (3)


(3) After paragraph 1 there is
inserted



“Examining officers etc





13

s.41

Arrest without warrant.



(1)A constable may arrest without a warrant a person whom he reasonably suspects to be a

terrorist.


(2)Where a person is arrested under this section the provisions of Schedule 8 (detention:

treatment, review and extension) shall apply.

14

1A

(1) The Secretary of State must under paragraph 6 of Schedule

14

issue a code of practice about



(a) training to be undertaken by constables, immigration

officers and customs officers who are to act as examining

officers or exercise other functions under this Schedule,

and

(b) the procedure for making designations under
paragraph

1(1)(b) and (c).



(2) In particular, the code must make provision for consultation

with

the relevant chief officer of police before designations are

made

under paragraph 1(1)(b) or (c).



(3) “Relevant chief officer of police” means


(a) in England and Wales, the chief officer of police for the

police area in which the persons designated
would act as

examining officers,

(b) in Scotland, the Chief Constable of the Police Service
of

Scotland, and

(c) in Northern Ireland, the Chief Constable of the Police

Service of Northern Ireland.”


The Commission supports the proposal for a revised code o
f practice to be
issued, which will specify details of the requisite training to be undertaken by
officers who are to act as examining officers or exercise other functions
under Schedule 7 of the Terrorism Act 2000. The Commission would
welcome the opportu
nity to assist in the development of this code of
practice, as has been recommended by the Joint Committee on Human
Rights.


Background


Paragraph 1(3) will insert a new paragraph 1A into Schedule 7 to the
Terrorism Act 2000 which places a duty on the Secretary of State to issue a
code of practice which will specify the details of the requisite training to be
undertaken by officers who are
to act as examining officers or exercise other
functions under Schedule 7 and the procedure for making designations. The
code of practice must be laid before Parliament and brought into force by an
order subject to the affirmative resolution procedure.



15

4.2

Power to search persons


P
age 171
, line 40 and page
172
,
lines 1
-
28,
paragraph 3


Powers to search persons

3 In paragraph 8 of Schedule 7 to the Terrorism Act 2000, after sub
-
paragraph

(3) there is inserted



“(4) An intimate search of a person may not

be carried out under this

paragraph.

(5) A strip search of a person may not be carried out under this

paragraph unless


(a) the person is detained under paragraph 6,

(b) the examining officer has reasonable grounds to suspect

that the person is concealing

something which may be

evidence that the person falls within section 40(1)(b), and

(c) the search is authorised by a senior officer who has not

been directly involved in questioning the person.

(6) “Senior officer” means


(a) where the examining officer i
s a constable, a constable of a

higher rank than the examining officer,

(b) where the examining officer is an immigration officer, an

immigration officer of a higher grade than the examining

officer, and

(c) where the examining officer is a customs officer
, a customs

officer of a higher grade than the examining officer.

(7) In this paragraph


“intimate search” means a search which consists of a physical


examination of a person’s body orifices other than the


mouth;


“strip search” means a search which is n
ot an intimate search


but involves the removal of an article of clothing which


(a) is being worn wholly or partly on the trunk, and

(b) is being so worn either next to the skin or next to an

article of underwear.”


The Commission supports this proposal.

The removal of the power to
conduct intimate searches will provide a more vigorous safeguard against
potential breaches of an individual's Article 8 rights. Undertaking a strip
search without any particular suspicion about an individual could constitute
a

breach of Article 8
.



16

Background


Paragraph 3 will amend paragraph 8 of Schedule 7 to the Terrorism Act
2000 which relates to the searching of persons examined under that
Schedule. New paragraph 8(4) of Schedule 7 prohibits an intimate search of
a person

and such a search is defined in new paragraph 8(7) of Schedule 7.
New paragraph 8(5) prevents a person from being stripped searched (again
as defined in new paragraph 8(7)) unless: the person has been detained; an
examining officer has reasonable grounds

to suspect that the person is
concealing something which may be evidence that the person is concerned
in the commission, preparation or instigation of acts of terrorism; and a strip
search has been authorised by a senior officer (as defined in new paragra
ph
8(6) of Schedule 7).


4.3

Biometrics


P
age 173, line
s

33
-
37,

paragraph 6


Biometrics

6

(1) Paragraph 10 of Schedule 8 to the Terrorism Act 2000 is amended

as follows.


(2) In sub
-
paragraph (5), for “the detained person only” there is

substituted “a

person detained under section 41, but only”.


(3) In sub
-
paragraph (6)(b), after “in any case” there is inserted “in

which an

authorisation under that sub
-
paragraph may be given
”.


The Commission supports this proposal.

We note the Home Office's
assessment that intimate biometric samples provide few advantages over
other samples and are particularly intrusive and the police have no evidence
of such samples being needed.
14

We agree with the view that the power to
take int
imate samples could be removed without compromising the
operational effectiveness of Schedule 7
.
15


Background


Paragraph 6
of Schedule 8 proposes that the power to take an intimate
sample from a person detained under Schedule 7 be removed from
paragraph
10 of Schedule 8 to the Terrorism Act 2000.




14

Op cit, note 11, p.12.

15

Op cit, note 11, p.5.

17



4.4

Review of detention under Schedule 7


P
age 17
3, lines 38
-
39 and page 174
, line
s1
-
33
, paragraph 7


Review of detention under Schedule 7


7

(1) The Terrorism Act 2000 is amended as follows.




(2) In paragr
aph 6(3) of Schedu
l
e 7 (provisions of Schedu
l
e

78

applying to detention under Schedule 7)
-

(a) for "Part 1" ther
e

is substituted "Parts 1 and 1A",

(b) after
"treatment" there is inserted "and review of detention."



(3) In Schedule 8, after Part 1 there i
s inserted




“PART 1A



REVIEW OF DETENTION UNDER SCHEDULE 7



20K

(1) The Secretary of State must under paragraph 6 of Schedule


14

i
ssue a code of practice about the periodic review by a review



officer of a person’s detention under Schedule 7.



(2)
A person’s detention under Schedule 7 must be periodically



reviewed by a review officer at such intervals as may be




specified

in, and otherwise in accordance with, the code of



practice.



(3) The review officer may authorise a person’s continued



detention

under Schedule 7 only if satisfied that it is necessary



for the

purposes of exercising a power under paragraph 2 or 3 of


that

Schedule.



(4) If on a review under this paragraph the review officer does



not

authorise a person’s continued

detention, the person must



be

released (unless detained under another power).



(5) In this paragraph “review officer” means a senior officer who


has

not been directly involved in questioning the detained




person

under paragraph 2 or 3 of Schedule

7.



(6) “Senior officer” means





(a) where the examining officer is a constable, a constable



of a

higher rank than the examining officer,




(b) where the examining officer is an immigration officer,




an

immigration officer of a higher grade than the





examining

officer, and

18




(c) where the examining officer is a customs officer, a




customs

officer of a higher grade than the examining




officer.



(7) The code of practice must include provision ab
out training to


be

undertaken by persons who are to act as review officers.”



Paragraph 7 of Schedule 8 inserts a new paragraph into Schedule 8 to the
Terrorism Act 2000 which provides that a person

s detention under
Schedule 7 must be periodically revi
ewed by review officers at such
intervals as may be specified in a code of practice which the Secretary of
State must issue. The review officer may only authorise continued detention
if satisfied that it remains necessary for the purposes of exercising a p
ower
conferred by Paragraphs 2 or 3 (questioning for the purpose of determining
whether the person appears to be a person who is or was involved in the
commission, preparation or instigation of acts of terrorism). If the review
officer does not authorise c
ontinued detention then the person must be
released.


The Commission supports this proposal. It introduces a significant
mechanism that will enhance the safeguards for individuals who are
detained to ensure that the detention only continues if it is a l
egitimate
requirement to achieve the purpose of the power. As noted in section 4.1
above, the Commission would welcome the opportunity to assist in the
development of the code of practice.



About the Equality and Human Rights Commission


The Equality and Human Rights Commission is a statutory body,
established under the Equality Act 2006. It is the independent advocate for
equality and human rights in Britain. It aims to reduce inequality, eliminate
discrimination, strengthen good relatio
ns between people, and promote and
protect human rights.


The Commission enforces equality legislation on age, disability, gender
reassignment, marriage and civil partnership, pregnancy and maternity,
race, religion or belief, sex, sexual orientation, and

encourages compliance
with the Human Rights Act. It also gives advice and guidance to businesses,
the voluntary and public sectors, and to individuals.

19


The Commission has a statutory duty under the Equality Act 2006
16

to
encourage and support the developm
ent of a society in which: people

s
ability to achieve their potential is not limited by prejudice or discrimination,
there is respect for and protection of each individual

s human rights, there is
respect for the dignity and worth of each individual, eac
h individual has an
equal opportunity to participate in society, and there is mutual respect
between groups based on understanding and valuing of diversity and on
shared respect for equality and human rights.


The Commission is responsible for monitoring t
he effectiveness of the
equality and human rights enactments and advising on the effectiveness of
enactments, as well as the likely effect of a proposed change of law
17
. The
Commission is also the designated independent body required by European
Union Equa
lity Directives to promote equal treatment without
discrimination
18
.


As a UN accredited National Human Rights Institution, the Commission is
required to

promote and ensure the harmonisation

of national legislation,
regulations and practices with the international human rights instruments to
which the State is a party

.
19





Find out more about the Commission

s work at:
www.equalityhumanrights.c
om






16

Equality Act 2006, section 3.

17

Equality Act 2006, section 11.

18

Council Directive 2000/43/EC implementing the principle of equal treatment between persons
irrespective of racial or ethnic origin, article 13 and Directive 2006/54/EC of the European Parliament and
of the Council of 5 July 2006 on the implementation of th
e principle of equal opportunities and equal
treatment of men and women in matters of employment and occupation (recast), article 20.

19

Principles relating to the Status of National Institutions (The Paris Principles), Adopted by General Assembly
resolutio
n 48/134 of 20 December 1993.