A civil liberties group says ministers must follow the English lead and outlaw the practice even if police choose to stop.
Liberal Democrat leader Willie Rennie will also today call for “consensual” stop and search to be ended immediately with a warning that the “level of trust between police chiefs and the Scottish Parliament is at an all-time low”.
At the moment, police are reviewing the practice and will report back to ministers in March, although it is expected to result in the practice being scrapped.
But regardless of what the police choose to do, critics say the Scottish Government needs to introduce legislation, as the Westminster Government did in 2002, to ensure that police only carry out searches in circumstances where they have explicit statutory power to do so.
Richard Haley, chair of Scotland Against Criminalising Communities (SACC), said: “Police have evaded accountability and statutory control on this issue for the entire history of the Scottish Parliament.
“This long-standing democratic deficit needs to be addressed.”
He claimed that First Minister Nicola Sturgeon, who announced the possible police U-turn to MSPs on Thursday, has been acting as a spokeswoman for Police Scotland. Mr Haley added: “She should act as First Minister and provide people in Scotland with at least the same degree of protection from arbitrary police action as people have in England and Wales.
“If the existing statutory powers of stop and search are thought by the police to be inadequate for crime prevention and detection, clearly defined new powers should be put before the parliament for debate. It is no solution at all to allow police to make up the rules as they go along.”
Ms Sturgeon told MSPs she would consider legislation if the police failed to act on the issue. Police Scotland is consulting with a view to ending the practice. There were 449,095 non-statutory stop and searches carried out last year, about 70 per cent of the total in Scotland, with about 15.6 per cent “positive”.
The tactic has proved controversial, amid claims that many people, particularly children, do not know they are entitled to refuse.
Police will still be able to use statutory stop and search where they have reasonable suspicion and suspects are told the legal reason behind it.
For example, the Misuse of Drugs Act would be cited if people are suspected of carrying drugs or the Criminal Law Act if they are thought to be carrying a knife.
Mr Rennie yesterday called for consensual stop and search to be scrapped immediately while the consultation is taking place.
“Last June they [the police] told us no child under the age of twelve would be subject to consensual stop searches by police with immediate effect,” said Mr Rennie.
“Yet, this week we discovered the police carried on regardless. In fact children were subjected to this practice on more than three-hundred occasions in just six months.
“Many people will raise a sceptical eyebrow when police chiefs say they are acting now.
“The best way to restore trust would be for the police to end the use of the discredited tactic with immediate effect – for everyone and not just those under twelve years of age.
“The police have had ample time to get this right. Now it is time for them to act. My concern is that the police will drag out this review for a very long time.
“We shouldn’t have to wait for a review to affirm the widely held opposition to this unregulated and illiberal approach. Police Scotland should agree to scrap consensual stop and searches immediately.
“This would rebalance police powers so that individual liberties were strengthened whilst maintaining public protection.
“With such big questions over consensual stop and search, it would be too great a risk to our civil liberties to allow it to continue during a review period.”
A spokeswoman for Police Scotland declined to comment further on the issue yesterday.
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