Stop and Search, Terrorism and the Human Rights Deficit

Abstract

This paper discusses the judgment of the House of Lords in Gillan [2006] UKHL 12, where the law lords examined the compatibility of the power in ss. 44 and 45 of the Terrorism Act 2000 to stop and search individuals with the Human Rights Act 1998. It is argued that the decision of the House of Lords that ss. 44 and 45 are compatible with Convention rights was wrong for a number of reasons. Not only did the House of Lords fail to interpret and apply the applicable Convention rights correctly, it also missed an important opportunity to develop the principle of legality in the context of the Human Rights Act. Moreover, the House failed to deal adequately with the troubling question of whether the exercise and use of the stop and search power under the Terrorism Act was racially discriminatory. These issues take on a particular importance not only because of the greater use of the power since the so-called ‘7/7 attacks’, but also because of the disparate impact that the use of the power has on racial minorities.