New police anti-terror powers could be unlawful, say MPs
Joint committee on human rights criticise right to detain travellers and raid their data
Friday 11 October 2013
Intrusive anti-terrorism powers that give police the right to detain travellers for up to six hours without suspicion, as well as download data from their phones and laptops, are unlawful, a group of MPs has warned.
In its report on the new Anti-Social Behaviour, Crime and Policing Bill, the joint committee on Human Rights (JCHR) said powers to access, search, examine, copy and retain data held on personal electronic devices, are so wide as not to be "in accordance with the law".
The Government has failed to show a need for the "more intrusive powers" under Schedule 7 of the Terrorism Act 2000, the Committee said, which also permit officers to detain passengers - whether suspicious or not - at ports and airports for up to six hours, as well as take fingerprints and DNA samples.
The group of MPs want a threshold introduced to the more extensive powers so they can only be applied if the examining officer reasonably suspects the person is or has been involved in terrorism.
The Committee's report welcomed changes to the Schedule 7 powers, which narrow the scope of the powers and reduce the potential for them to clash with the European Convention on Human Rights (ECHR).
Despite the changes, the group of MPs still has concerns the powers to search without suspicion would breach human rights law - namely the right to liberty and security and the right to a private life.
Its report said the Government has "clearly made out a case for a without suspicion power to stop, question and search travellers at ports and airports, given the current nature of the threat from terrorism".
But it went on: "We are not persuaded that the Government has demonstrated the necessity for the more intrusive powers - to detain for up to six hours, to access, search, seize, copy and retain all the information on personal electronic devices such as mobile phones, laptops and tablets, and to take and retain fingerprints and DNA samples without consent - being exercisable without reasonable suspicion."
The report adds: "We consider that the current powers to access, search, examine, copy and retain data held on personal electronic devices, such as mobile phones, laptops and tablets, are so wide as not to be 'in accordance with the law'.
"In our view the powers to search personal electronic devices are so intrusive, given the nature of the information held on those devices, that they should only be exercisable on reasonable suspicion."
In August, the High Court rejected a submission that Schedule 7 powers violated an appellant's human rights.
Sylvie Beghal - whose convicted terrorist husband Djamel Beghal is in prison in France - wanted a declaration that her rights had been violated when she was prosecuted after objecting to being questioned under the anti-terrorism laws.
Three judges ruled against her at the hearing - but they suggested that there might be "room for improvement" to anti-terror legislation which gives police the power to "stop, question and detain" people entering or leaving the UK.
The powers recently came under the spotlight after officers used them at Heathrow in August to detain David Miranda, the partner of Guardian journalist Glenn Greenwald, who broke the Edward Snowden state surveillance story.
The Government's reviewer of terrorism legislation is currently investigating the detention of Mr Miranda.
David Anderson QC said he wanted to "get to the bottom" of what had happened and asked Scotland Yard and the Home Office for a full briefing.
JCHR chair Dr Hywel Francis MP said: "Given the current nature of the threat from international terrorism, we also accept that the Government has made out the case for having an unusual power to stop, question and search travellers without suspicion.
"However, recent events have brought to the world's attention how extraordinarily broad those powers are.
"They include the power to detain somebody, to take their mobile phone and laptop and download all the information on it, and to take biometric samples, all without reasonable suspicion.
"Most people would be shocked to know that the police have such extensive powers which could be exercised in relation to anyone, whether suspicious or not.
"We make the simple recommendation that the more intrusive powers should only be available where the police have formed a reasonable suspicion that the traveller may be somebody who is involved in terrorism."
The Anti-social Behaviour, Crime and Policing Bill was introduced in the House of Commons in May.
Its report stage in the House of Commons is scheduled for next week.
As well as powers to stop, question, search and detain at ports, it also concerns anti-social behaviour, forced marriage and miscarriages of justice.
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