Some of yous seem to be eagerly checking the status of our FOIA request to the Home Office about Terrorism Act 2000 Section 44 Authorisation Notifications for "no reasonable cause" stops and searches of people and vehicles - our web logs show regular interest from the Metropolitan Police Service and from the catch all Government Secure Intranet.
A Letter from the Home Office, arrived today 11th February 2008, in response tour request which they say they received on the 19th of November 2007. This was a paper snail mail copy of an email sent on 14th November, and which was acknowledged as having been received via their letter of 17th December 2007 i.e. the Home Office's first substantive response has arrived after 59 working days.
Even allowing for these discrepancies, the Home Office have, yet again, not complied with the 20 working days laid down by the Freedom of Information Act 2000 law.
It appears that the Home Office have conducted a a "public interest test", but without mentioning that they were planning to do so, in any substantive response within the 20 working days. The Information Commissioner usually grants a Public Body another 6 weeks leeway if they choose to go down this route of non-disclosure and delay, but the Home Office have, yet again, exceeded that time period as well.
A request for an Internal Review (without which you cannot appeal to the Information Commissioner) is in the post.
The Home Office is trying to argue that the Section 44 powers are a deterrent but that even the geographical extent of the Authorisations should be secret.
How effective can a secret deterrent be ?
These exceptional powers for Section 44 stop and search were specifically time and location limited by Parliament, and are not general , any time, any place, Police powers, but that is what the Home Office appears to be treating them as.
Are are they acting in excess of their legal powers - is this ultra vires ?
We argue that transparency would create a far more effective counter terrorism measure, by alerting the public to be extra vigilant in a particular place, at a particular time.
Better use of Police resources and less hassle for the law abiding public could be achieved, by publishing details of Section 44 Authorisations, perhaps on a map on the Home Office website. Law abiding members of the public could then avoid locations or times, where and when a temporary Section 44 Authorisation is in force, especially if they are carrying or transporting legal, but potentially suspicious items like shotguns, paintball guns, or ammonium nitrate based fertiliser etc.
Here is the re-typed text of the Letter:
Home Office
Direct Communications Unit
2 Marsham Street, London, SW1P4DF
Switchboard 020 7035 4848 Fax: 020 7035 4745 Textphone: 020 7035 4742
E-mail: public.enquiries@homoffice.gsi.gov.uk Website: www.homeoffice.gov.uk
[name]
[address]08 February 2008
Reference: Tnnnnn/nn
Dear Mr [xxx]
Thank you for your letter dated 14 November 2007, received here on 19 November 2007. You requested information on Section 44 stop-search aauthorisations, including which authorisations the Secretary of State has been informed of; which have not been confirmed; which have been modified; which have been canceled and which have been renewed in writing. Ideally, you are requesting disclosure of all the authorisations since the Terrorism Act 2000 came into force.
Your request has been considered under the Freedom of Information Act and I apologise for the delay in responding.
I can confirm that the Home Office holds the information that you requested. However, I am not obliged to disclose it to you. After careful consideration we have decided that the information is exempt from disclosure by virtue of Section 21, (Information supplied by or relating to, bodies dealing with security matters), Section 24 (National Security) and 31 (Law Enforcement) of the Freedom of Information Act.
Section 23 of the Act is an absolute exemption, which provides that where information was directly or indirectly supplied to the Home Office by, or relates to, a body dealing with security matters, that informations is exempt.
The Terrorism Act 2000 Section 44 - 47) authorisations are not requested by the Security Service MI5, nor by the Secret Intelligence Service Mi6, nor by GCHQ nor by the Defence Intelligence Staff nor by other military units.
They are requested by the Chief Constables or their Deputies of civilian Police Forces.
The "no prior intelligence / no need for reasonable suspicion" stop and searches of vehicles and pedestrians are not even carried out by specialist Counter Terrorism Units, but by ordinary Police Constables in Uniform.
The Counter Terrorism Units should, presumably, be working on the basis of Intelligence Led Policing, and actually have "reasonable suspicion" before they move into action.
Section 24(1) and 31( 91)(a-c) are qualified exemptions which provide that information is exempt if exemption is required for the purpose of safeguarding national security (s24) and if its disclosure would, or would be likely to, prejudice the prevention or detection of crime, the apprehension or prosecution of offenders, or the administration of justice (s31). Where exemptions are qualified, we are obliged to assess whether the public interest falls in favour of maintaining the exemption or disclosing the information. After careful analysis it has been decided not release the information.In considering the public interest factors in favour of disclosure of the information, we gave weight to the general public interest in transparency and openness. This was considered in balance with not disclosing the information due to national security and law enforcement issues.
Section 44 authorisations include sensitive information, including an ongoing assessment of the terrorist threat, a consideration of the terrorist threat specific to the relevant police district, a consideration of the geographical extent of an authorisation and an assessment of the operational use of the powers. For these reasons an authorisation cannot be provided to members of the public as to do so may lead to the disclosure of intelligence which may jeopardise anti-terrorist operations.
We did not ask for all that background intelligence information !
Surely the Home Office and the senior Police Officers do not give out all this background intelligence information to the Constables in Uniform who are manning the roadblocks and search cordons ?
That is far in excess of what the Terrorism Act 2000 Section 44 and Section 46 require to be notified to the Secretary of State i.e essentially only simple time, date, duration and geographical location data, which is all that we asked for.
Modifications and extensions and cancellations and confirmations in writing, are just mechanisms to ensure that long term Authorisations, and any rapid, immediate tactical decisions, have the paperwork done as soon as is practical afterwards, and are then actually sanity checked by the Home Secretary.
These exceptional powers for Section 44 stop and search were specifically time and location limited by Parliament, and are not a general , any time, any place, Police power.
Stop and search under section 44 of the Terrorism Act 2000 is an important tool in the ongoing fight against terrorism. As part of a structured anti-terrorist strategy, the powers help to deter terrorist activity by creating a hostile environment for would-be terrorists to operate in. The purpose of the policy is to act as a deterrent to terrorists. Therefore even revealing the geographic area that authorisations are in place would limit the effect of these powers as a counter terrorism measure. It would also prejudice law enforcement because knowledge of where authorisations are in place could be considered beneficial to individuals attempting to avoid detection when planning or carrying out an act of terrorism.
Can the Home Office really not see the wood for the trees ?
Not a single terrorist act has been stopped as a result of the tens of thousands of Section 44 stops and searches, and absolutely no terrorist weapons or money etc. have been found by such random stops and searches.
Even the Home Office statistics admit that these Section 44 stops and searches are being conducted with a racial or ethnic group bias.
How can you deter someone from doing something, when your deterrent is kept secret ?
CCTV cameras or Speed Cameras do not deter or prevent offences when they are not clearly signposted and visible.
Remember Section 44 stops and searches are in the public street or public places, conducted by Police Constables in Uniform.
It would strengthen the deterrent effect of the powers if the general public was aware of the fact that a Section 44 authorisation was in force at a particular time, in a particular geographical area - the public could then be more vigilant themselves.
If normal members of the public knew the geographical details of such Authorisations, ideally via a map published by on the Home Office website, then they could avoid bringing potentially suspicious, but innocent, items into the area e.g. legally held shotguns or paintball or BB guns etc. They could inform the Police ahead of time, if they are transporting potentially dangerous materials e.g. ammonium nitrate based fertiliser. This would result in more efficient use of Police Constables on the ground, with fewer false alarms, and less harassment of the innocent public.
There are already instances where private sector "security guards", who have no legal powers under Section 44, are abusing the ignorance of the public, by pretending that their particular building etc. is subject to Section 44 stop and search powers.
There has been the Gatwick Airport case, where the paperwork was bungled, and the Authorisation had expired. If anybody had been detected carrying weapons etc. during the searches erroneously conducted under this expired authorisation, it could easily have led to criminals or terrorists having any legal proceedings against them dropped.
This led to the Ministerial Statement by Tony McNulty see -
Commons Hansard 12 Dec 2007 : Column 41WS
Transparency in publishing these Authorisations would help the Police on the ground who have to enforce them, as well as the public.
The public interest in transparency, for what are supposed to be strictly duration and location limited powers, is surely overwhelming ?
If you are dissatisfied with this response you may request an independent internal review of your request by submitting your complaint within two months to the below address quoting reference nnnn
Information Rights Team
Information and Record Management Service
Home Office
4th Floor, Seacole Building
2 Marsham Street
London
SW1P 4DF
Email: info.access@homeoffice.gsi.gov.ukDuring the independent review of the department's handling of your information will be reassessed by staff who were not involved in providing you with this response. Should you remain dissatisfied after this internal review, you will have the right of a complaint to the Information Commissioner as established by section 50 of the Freedom of Information Act.
I realise that you may be disappointed with this response.However we have considered the application of exemptions with great care in this case, and the Home Office always seeks to provide as much information as it is able to.
Yours sincerely
[signature of Civil Servant]
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