The case of the Afghan hijackers sparked government outrage at the way human rights are interpreted by judges. Yet this strategy merely masks home office shortcomings, argues Roger Smith

Shakespeare knew a thing or two about the dying ruler. Prime Minister Tony Blair lacks the poetry of a Lear vowing revenge on his tormentors: ‘I will do such things. What they are, yet I know not – but they shall be the terrors of the earth.’


But the feeling is much the same. He wants to cut the judiciary down to size. He is fed up with ‘barmy’ verdicts on human rights – like that, he says, of Mr Justice Sullivan on the Afghan hijackers. He argues that human rights are impeding the imprisonment of dangerous offenders. Thus, the PM has instructed his new home secretary to ‘look again’ at whether primary legislation is necessary to change judicial interpretation of the Human Rights Act.


Mr Blair shares with Shakespeare’s tragic hero a shaky – if not wilful – understanding of the facts. Mr Justice Sullivan’s judgment concerned the case of those on a hijacked aircraft who claimed asylum. The judge objected, rather understandably, to the non-implementation by the government of a binding decision by the relevant tribunal. He went to some lengths to make this clear: ‘Lest there be any misunderstanding, the issue in this case is not whether the executive should take action to discourage hijacking, but whether the executive should be required to take such action within the law as laid down by Parliament and the courts.’


Deportation is a bit of a difficult subject for the Prime Minister. Despite ever more Draconian legislation, it seems that the Home Office is not much concerned with delivery. The person in charge of removals, the hapless David Roberts, could not even tell a House of Commons committee that visa-overstayers were sent a letter asking them to leave. The latest numbers of serious offenders released from prison who should have been considered for deportation now stands at 179. Of these, 35 were convicted of serious offences.


The Home Office cannot apparently guarantee that offenders were considered for deportation even when the judge specifically recommended it. The top four countries of origin of the foreign offenders were Jamaica (175), Nigeria (59), Iraq (58) and Ireland (50). Of these, only Iraq would automatically raise issues of whether individuals could be returned on the ground of their safety. In other cases, there might be wholly appropriate considerations either of personal safety or of family ties. In any event, the failure was to make any decision – not any decision itself.


Mr Blair seeks to deflect a justified storm of criticism. He seized on the report of Andrew Bridges, the chief inspector of probation, to prove his point that human rights are out of control. Read it. Mr Bridges actually makes a rather different point. His recommendation was that the relevant authorities should give ‘a top priority focus’ to public protection rather than the human rights of the offender. He explained: ‘This means making good use of the very good guidance and training materials.’ In other words, the policy was fine. What occurred was an operational failure to carry it out.


Pick your character. Mr Blair may be Lear or he might be Sampson – intent on collapsing the temple on his own head.


The UK government has been signed up to the European Convention on Human Rights since it entered into force on the 3 September 1953. The European Court of Human Rights polices the convention. Enforcement of its decisions is the responsibility of the Council of Ministers, namely, the governments of all the members of the Council of Europe. The court decided in 1996 that the provision against torture or ill-treatment, at the core of post-war rights developed in the shadow of the holocaust, included protection from transport to another country where there was a real likelihood of torture or ill-treatment even where there were issues of national security. This was, on the one hand, a high moral judgement. On the other, in the modern world, it is pragmatic. Globalisation applies not only to trade. Torture by one country infects others – observe only the recent experience of the US.


Mr Blair, like Lear, is grandstanding. He is picking fights on the Human Rights Act to deflect investigation of what is frankly longstanding incompetence at the Home Office. Lord Falconer, the Lord Chancellor, goes around quietening the horses, as in his recent Hansard Society lecture where he said ‘the problem is not the letter of the law, but the way it is being used’. Pity this is not what Mr Blair is fulminating out there on the blasted heath.


Labour’s constitutional agenda will be its lasting legacy. It seems an odd wish of a dying leader to threaten a course of action whose logical result is that the UK joins Belarus as the only countries on mainland Europe outside the Council of Europe. And which, as a result, would lead to us being ejected from the EU. Impatience at imminent mortality is no excuse for over-dramatised hysteria – as someone might have pointed out in suitably poetic terms to Lear.


Roger Smith is is director of the law reform and human rights organisation Justice