4 February 2016
Schedule 7: a flawed law that needs to be changed
The Court of Appeal has recently declared Schedule 7 incompatible with the right to freedom of expression and information.
Feature image taken by Flickr - the original can be accessed here
Stop and search powers are again under the spotlight for judicial scrutiny. This time it is the turn of Schedule 7 of the Terrorism Act 2000 which allows officers to stop and question a person at a port or border for the purpose of determining whether he or she appears to be involved in acts of terrorism. Crucially, officers do not need reasonable grounds for suspicion to stop people under this power, which allows a high level of police discretion.
In this case Mr. David Miranda had been stopped and detained for 9 hours at Heathrow Airport in August 2013, the maximum period that a person could be detained for under that power. Schedule 7 was used to detain Mr Miranda who was suspected of carrying files related to information on the U.S. surveillance programme leaked by Edward Snowden.
The case has been recently heard by the Court of Appeal which declared Schedule 7 incompatible with Article 10 of ECHR (right to freedom of expression and information) due to their belief that the powers did not protect ‘privileged material’ such as legal files or journalistic information. The Court urged Parliament to provide such protection.
This is a victory not only for the principles of free press and journalism, but also because it points to the fact that a law that allows officers to exercise their powers in such an arbitrary way is a flawed law and it needs to be changed.
This recognition is needed now more than ever. Recent falls in the overall number of examinations carried out under schedule 7 may make it seem that the worst excesses of the power are being addressed but as David Anderson, the UK’s counter-terrorism watchdog, has repeatedly warned, the government has "unfinished business". Anderson has repeatedly criticised the government for not protecting legally privileged material; the lack of ‘clear’ and ‘proportionate’ rules to govern the use and retention of data taken from electronic items (phones, laptops, tablet PCs, etc); and for not introducing a statutory bar to rule admissions made during questioning as inadmissible in court given that answers given during questioning may not be reliable in such high pressured environment.
Further, whilst examinations are declining the single largest group of people detained under schedule 7 are those from Asian backgrounds as in previous years.
Clearly, the lack of safeguards and wide police discretion allow port officers to use their powers in ways which differ from what was originally intended, as was the Court’s conclusion.. Unfortunately, the case only successfully challenged the lack of safeguards concerning journalistic material and leaves some other fundamental issues unanswered such as those raised by Anderson. Given the lack of initiative by successive British governments, it may be that only litigation can provide the answer. In any case, schedule 7 is the widest ranging stop and search power in the UK and needs to be reformed.