DURING the second reading of the Human Rights Bill in November 1997, Lord McCluskey gave warning that the legislation would provide “a field day for crackpots, a pain in the neck for judges and a gold mine for lawyers”. Recent events demonstrate that, in truth, the Human Rights Act has become an excuse for the incompetent, a diversion for the ill-informed and a weapon for partisan politicians.

The Prime Minister describes as “an abuse of common sense” the decision of Mr Justice Sullivan that nine Afghan asylum-seekers who hijacked a plane to come to this country should be recognised as refugees. David Cameron says that if the Conservative Party is returned to office it may “reform, replace or scrap the Human Rights Act”. The Sun newspaper begins a campaign “to expose human rights madness wherever we see it” (though the fact that its journalists identify the European Union as the source of the European Convention on Human Rights does not inspire confidence in its ability to focus accurately on the problem). Human rights fever has become much more prevalent than bird flu, but fortunately a little calm reflection can remove all the symptoms.

First, it is necessary to put to one side all the many cases where the problem is rank incompetence or poor judgment. The Human Rights Act is not responsible for the failure of the Home Office to deport, and thereafter the inability of the probation service to track in the community, foreigners convicted of serious criminal offences. If the Home Secretary is serious about tackling those problems, he will be identifying which civil servants failed to ensure that a basic, but fundamental, function of government was properly performed. Nor did the legislation require the release into the community of the rapist Anthony Rice, who murdered a woman while on parole. The statute does not remove the power and the duty of the Parole Board to decide whether it is safe to release a particular offender. Human rights law has no responsibility for these, and other, examples of ineptitude.

Secondly, we need to dispose of the ludicrous interpretations of the Human Rights Act that would be laughable but for the serious damage they do to the public interest, and to the reputation of civil rights in this country. Contrary to the views of some police forces, the law does not prevent them from publishing photographs of wanted suspects because of concerns about their “privacy”, any more than schools have a duty to prevent parents from using a video recorder at the school play because of the risk of paedophilia. What is so striking about these, and other, examples of absurd applications of the Human Rights Act is that they are not judicial decisions, but the ill-informed views of often well-meaning individuals and bodies who are a few volumes short of a law library. Judges have been rightly cautious about the application of the Human Rights Act 1998. They have repeatedly emphasised that the legislation is designed to ensure a fair balance between the rights of individuals and the needs of the community.

Thirdly, we must guard against the Human Rights Act becoming a weapon as the Government seeks to find scapegoats for its mistakes, and the Conservative Opposition attempts to improve its position in the opinion polls. All governments approve in principle of judicial independence (indeed this Government persuaded Parliament to enact Section 3 of the Constitutional Reform Act 2005 which imposes a duty on all ministers to “uphold the continued independence of the judiciary”) but bitterly resent judges exercising it to overturn their own decisions. The reaction to Mr Justice Sullivan’s judgment on the Afghan refugees is the latest in a long line of examples of ministerial sour grapes (from Conservative and Labour politicians) that started long before Tony Blair left the Bar to become a politician.

There are serious issues raised by human rights law. In particular whether the European Court of Human Rights was correct in 1996 to rule that a state may not deport a person to face torture or ill-treatment abroad even if that person is a danger to the security of the deporting country. But informed analysis of such issues is not advanced by ministerial attempts to blame courts for government incompetence, or by general ignorance of the principles of human rights law, or by abuse of judges.

In 2000, Lord Bingham of Cornhill, the senior law lord, quoted Hamlet when emphasising that human rights law does not offer relief from “The heart-ache and the thousand natural shocks/ That flesh is heir to”. Heartache and natural shocks are the inevitable condition of political life in any democracy. The Human Rights Act is neither the cause nor the solution.

The author is a practising barrister at Blackstone Chambers in the Temple and a Fellow of All Souls College, Oxford

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