openDemocracyUK

European Court rules against stop and search, so why are our judges so weak?

Back in 2003 the police used stronger stop and search powers from the government’s anti-terrorism laws to harass, disrupt and humiliate people protesting against an arms fair in east London. Their tactics were clearly an abuse of these powers.
Stuart Weir
14 January 2010

Back in 2003 the police used stronger stop and search powers from the government’s anti-terrorism laws to harass, disrupt and humiliate people protesting against an arms fair in east London.  Their tactics were clearly an abuse of these powers and were designed to break up a legitimate peaceful protest. 

They were, as it were, bang to rights under the Human Rights Act, but that is not how it appeared to our judges.  In 2006 the House of Lords unanimously dismissed the complaints of two of the protestors and since then the use of stop and search powers have increased to such an extent that even the weaselly Lord Carlile, the independent reviewer of anti-terrorism laws, has been moved to protest.At last, the European Court of Human Rights has upheld their complaint and denounced the arbitrary nature of these powers and expressed additional concern over their disproportionate use against black and Asian people. 

So that’s all right then?  Not exactly.  The case demonstrates the weakness of the Human Rights Act – a fine piece of legislation in its own terms -  within a defective polity.  First, the Act relies on a judiciary that is properly independent of the executive but still defers to governments on issues of terrorism, security and so on.  Moreover, as recent judgments have shown, there is still a strong bias on the bench against collective trade union action. 

Secondly, the executive has reservoirs of discretion at its disposal.  Thus the government has managed to keep ‘suspects’ in preventive detention despite a series of judicial decisions.  It is fudging the European Court’s ruling on holding the DNA of people who have not been found guilty of offences. And now it is going to defy this European Court ruling pending an appeal.  The Act will only work properly in my view within a polity governed by a written constitution and a Parliament elected on a representative electoral system. Otherwise it is a ‘battered shield’.

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