We Brits invented ?human rights? but the application of the law has become an abuse of common sense. It is time to rebalance the scales, writes Peter Millar 
 
The situation was explosive. The hardmen of the SAS were lurking in readiness, armed police surrounded the Boeing 727 as it sat on the runway at Stansted airport. Inside, armed hijackers held passengers and crew to ransom.

When, after 70 hours of tense negotiations they gave up, it was seen as a classic operation, a victory for common sense. And so it turns out to have been: for the hijackers. 
 
Mr Justice Sullivan?s ruling last week that the nine hijackers can stay in this country indefinitely because to return them home to liberated Afghanistan would be an abuse of their human rights suggests that crime pays after all.

The prime minister, for once in tune with the majority of the electorate, thought otherwise: ?It is an abuse of common sense.?

But then common sense ? as it is commonly understood ? doesn?t seem much in demand of late. As witness drug-addicted prisoners from jails across Britain suing the Home Office for violating their human rights by subjecting them to the ?cold turkey? of enforced withdrawal.

They were encouraged by ?2,400 awarded Robert Napier, an armed robber in Barlinnie prison, Glasgow, who complained the practice of ?slopping out? his cell degraded his human rights.

The case of the paedophile John Callison, who demanded compensation because prison was boring, was rejected. But not before running up large sums in legal aid.

All this pales before the case of the rapist Anthony Rice, who despite psychiatric reports recommending he be kept incarcerated was freed from jail by a probation panel convinced that his human rights were being abused ? and within months murdered a woman. But then that?s par for the course, with a parole and probation service in chaos while the Home Secretary is forced to resign because more than 1,000 foreign prisoners who could ? and in most cases should ? have been deported were released, often to offend again.

Everybody?s whipping boy is the Human Rights Act, hailed in 1998 as one of this government?s great achievements not only by the prime minister but also, more tellingly, his wife, a lawyer whose Matrix chambers have benefited massively by its introduction.

Now even Tony Blair, a lawyer, professes not to understand its working or implications. So is it the law that is an ass, or just the lawyers?

Some of the press has gone into overdrive, proclaiming that Britain has once again fallen victim to foreign diktat and political correctness. Why don?t the French or the Germans have these problems? Max Hastings, writing in the Daily Mail, said: ?As ever, Britain is the most scrupulous adherent to this law.?

But this popular belief that Britain is the good citizen in a corrupt Europe embodies two fallacies: first ? that we alone apply the rules when sometimes it is our own officials who interpret them bizarrely; second ? that there is one Europe out there, rather than 24 other countries.

The tension between human rights and the rule of law is as old as the concept of individual freedom. Which is not all that old.

The first modern code of laws was the Codex Maximilianus laid down in Bavaria in 1756, based on ancient Roman law. It went on to become the German B?rgerliches Gesetzbuch (citizens? law book) hailed in 1900 as the most liberal in Europe. Despite temporary corruption by the Nazis, it remains the basis of law in Germany, but also Japan, South Korea and Taiwan.

The Code Napol?on introduced in post-revolutionary France in 1804 became the basis for legal systems also in Spain, Portugal, Italy, Belgium and the Netherlands. 

British common law began as a collection of Anglo-Saxon customs and traditions homogenised by the Normans and modified by parliament and countless courtroom decisions (similar to much of Scandinavia).

A key difference with France is that because the Code Napol?on was drawn up after the revolution the judiciary was seen as much more a branch of the ?people?s government?. Or as one influential British human rights lawyer has it, ?more inclined to bend to the wishes of the executive?.

Britain, by contrast, as Margaret Thatcher uncomfortably reminded President Fran?ois Mitterrand at the 200th anniversary of the French revolution in 1989, had cut off its king?s head more than a century earlier.

The 1689 Bill of Rights, which ended the tumult of the English civil war and subsequent royal succession squabbles, established the judiciary as an independent bulwark against the potential tyranny of government.

The fact that it was intended initially to keep the king in check in no way diminishes its basic function when the powers that the monarch then had are now held and exercised by a prime minister with a commanding majority.

The US Bill of Rights, a century later, was based on the English original ? it still is, including the citizen?s right to bear arms which we have written out -? and in turn gave birth to the French revolution?s famous declaration of the rights of man and the citizen.

That was the model for the United Nations universal declaration of human rights in 1948, and then the European convention on human rights in 1952. In other words, if we want to know where all this fuss started, the answer is on our own doorstep.

The 1998 Human Rights Act is merely the adoption of the convention into British law, meaning cases no longer have to go to Strasbourg. In fact, the two cases on which the controversial Afghan decision was based were dealt with in Strasbourg before 1998.

The first, in 1989, concerned a German citizen living in the UK who successfully fought extradition to the US for a murder he admitted on the grounds that death row conditions in Virginia were inhumane.

The decision, widely seen as indicating European disapproval for the death penalty, was made under article 3 of the convention which forbids torture or ?inhuman or degrading treatment?, and by extrapolation prevents suspects from being deported to any country where this might be expected to happen to them.

The second case, in 1996, concerned an illegal Sikh immigrant into the UK, later regularised under an amnesty, whom the home secretary wished to deport after serious criminal charges were brought against him.

The case went to Strasbourg where the court ruled ? on a hotly disputed majority verdict ? that he would be liable to ?mistreatment? if returned to India. Significantly, the judgment stated: ?In the circumstances the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration.?

That wording sent shockwaves down Whitehall, and through the interior ministries of other European signatories. It was not binding, but such is the moral force of the Strasbourg court that it has been widely adhered to.

Martin Howe, who has written on the act for the centre-right think tank Politeia, maintains that ?states signing the convention at the time would have been horrified if they?d been told this document deprives you of your right to remove people who are a threat to your security?.

In other words, it?s all in the interpretation, precisely where British legal tradition and history come into play, with judges seeing themselves as not just an arm of the state but a check on its powers. And more than a few see the Blair government as rampantly authoritarian. It was the same Mr Justice Sullivan who ruled in the Afghan hijack case who said the Home Office?s ?control orders? on terror suspects amounted to house arrest and were incompatible with the Human Rights Act?s guarantee of a fair hearing.

In the Afghan case he called the Home Office?s defence a ?transparent attempt to find a form of words? to justify itself. The Home Office?s response to the control orders ruling was to say it would appeal and meanwhile ignore it.

France?s lack of
similar embarrassment can be attributed not just to a different judicial history and attitude but also the system of putting investigating magistrates in charge of a case from the outset. Dismissed by some libertarians as a ?fig leaf?, it nonetheless establishes a framework for detaining suspects legitimately.

It is a framework that some MPs and judges favour introducing here. David Cameron, the Tory leader, has said he would reform or repeal the Human Rights Act. But seriously abandoning it is hardly an option for the country that first enshrined its principles. One option might be to withdraw and sign up again with new ?reservations?, such as those chosen by France which exempts its military discipline. But then given the scandals at Deepcut barracks, that option might not be attractive.

Part of the problem is that the human rights convention was drawn up in a different world, in the aftermath of cataclysmic war, by countries anxious to protect their citizens from future despotism, domestic or foreign.

But the universal principles, based originally on the 18th-century French philosopher Jean-Jacques Rousseau?s vision of humanity, suggest the same rights must be accorded to everyone, whatever their nationality.

Howe has called this a ?form of moralistic imperialism: seeking to impose European convention notions of human rights on those with other traditions and cultures?. Its proponents would not deny this but hold that it is time that humanity as a whole recognised universal rights although many, notably the rights accorded women in Europe, are flouted in much of the rest of the world.

What might be necessary is to take a leaf from the German book where judges are required to interpret the spirit ? or intention ? of the law, rather than the letter.

It is easy to talk of our belief in human rights in the same breath as that in democracy, but we don?t like it when democracy gives us Hamas or Nazis. The reality is that the society we call the West rests on a conservative-liberal consensus, in effect a high-wire balancing act, performed simultaneously by both judiciary and government.

The representation of justice as a blindfolded figure holding scales is idealistic; what matters is keeping them balanced.