Leading lawyers accused the government of kneejerk politics yesterday after it pledged to review the Human Rights Act following Conservative claims that the law was being exploited by criminals.
The government has been on the defensive on the issue since last week, when a high court judge allowed nine Afghan hijackers to stay in the UK. Tony Blair criticised the decision and David Cameron, the Tory leader, said he would "reform, replace or scrap" the 1988 act in its wake.
In a letter from the prime minister released yesterday the home secretary, John Reid, was told to "look again at whether primary legislation is needed to address the issue of court rulings which overrule the government in a way that is inconsistent with other EU countries' interpretation of the European convention on human rights".
Lord Falconer, the lord chancellor, said yesterday there was "real evidence" that the act, which enshrines the convention, was being wrongly interpreted, but he pointed the finger at officials rather than the courts. He cited the case of Anthony Rice, a convicted rapist, who murdered a woman while on parole. An official report into the case last week said parole and probation staff had set too much store by Rice's human rights.
"This is not about an attack on the judges, this is about making clear in particular areas - like the release of prisoners who might be a danger to society - that public safety comes first," Lord Falconer told Sky News's Sunday Live.
That would involve ensuring officials were properly trained, but could in time require legislation to change the act, he said. But the government would continue to support the convention, he said, because not to do so would require Britain to leave the EU.
Lord Falconer played down the significance of the Afghan case yesterday but other government officials said it was relevant. The hijackers had originally won the right to stay from an immigration adjudication panel in 2004, based on the convention which the act enshrines.
Louise Christian, a human rights lawyer and former Socialist Alliance candidate, told Sky: "I think this is a massive diversion from what is actually an ordinary law and justice cock-up over the failure of the government to review the rules for foreign criminals for deportation. It's got nothing to do with the Human Rights Act."
The hijackers' case was covered by the convention and the act enabled redress without needing five years to take the case to the European court of human rights in Strasbourg, she said.
Anthony Lester QC, the Liberal Democrat peer and leading human rights lawyer, reinforced that point last night.
The main plank of the judgment was that the home secretary's change in policy, attempting to defy an immigration panel ruling that the Afghans should be granted the right to remain in the UK, was arbitrary and an abuse of power, he said.
Nor did any court rule in Rice's case that his human rights would be breached if he were kept in prison.
"The idea that we have to amend the Human Rights Act to put public safety first is total rubbish because public safety is at the heart of the human rights convention," he told the Guardian."There are positive obligations to protect victims of crime against criminals. If a woman is not protected by the state against rape, she has a claim under the Human Rights Act."
Lord Lester said that unlike Amnesty International, he favoured the memoranda of understanding which the government was trying to negotiate to return suspected terrorists to countries with a history of torture, as long as independent monitoring arrangements were in place.
"I've never believed the European human rights convention makes it impossible in all circumstances to send someone to a country which has a history of torture, provided that the safeguards are there," he said.