Joint Committee On Human Rights Thirty-Second Report

2  Events giving rise to the reviews

The case of the Afghani hijackers

9. On 10 May 2006 the High Court overturned the Home Secretary's decision that it was not appropriate to grant discretionary leave to enter the UK to nine Afghan nationals who arrived in the UK on 7 February 2000 having hijacked an aircraft on an internal flight in Afghanistan in order to flee from the Taliban regime. The High Court ordered the Home Secretary to grant them discretionary leave to enter for a period of six months.

10. The Prime Minister responded publicly to the judgment on the same day, saying:

"We can't have a situation in which people who hijack a plane, we're not able to deport back to their country. It's not an abuse of justice for us to order their deportation, it's an abuse of common sense frankly to be in a position where we can't do this."[16]

11. The Home Secretary, Rt Hon Dr John Reid MP, also responded publicly, saying on 11 May:

"When decisions are taken which appear inexplicable or bizarre to the general public, it only reinforces the perception that the system is not working to protect or in favour of the vast majority of ordinary decent hard-working citizens in this country."[17]

12. On 12 May The Sun newspaper launched a campaign to persuade the Government to "rip up the Human Rights Act".

13. The Home Secretary appealed against part of Sullivan J's judgment. In August the Court of Appeal dismissed the Home Secretary's appeal. The Court of Appeal noted that the case "has attracted a degree of opprobrium for those carrying out judicial functions" and expressly commended Sullivan J for "an impeccable judgment".[18] It also pointed out that there had been ample time, in the six years since the hijackers landed here, for the Home Secretary to obtain appropriate Parliamentary authority for the powers which he sought to give himself without parliamentary sanction.[19]

14. The Government's public reaction to the High Court judgment suggested that the High Court had just decided that the nine Afghan nationals could not be returned to Afghanistan and that this was based on a perverse interpretation of human rights law.

15. The decision that the Afghan nationals could not be returned to Afghanistan was a decision taken, not by the High Court on 10 May 2006, but by a panel of three Immigration Adjudicators on 8 June 2004. The adjudicators held that they found that the evidence was overwhelming that although the Taliban had been defeated and were no longer in control of the country, they were re-grouping and could pose a real risk to individuals if they wish to target them. They found as a fact that there was a real risk that the nine individuals would be targeted for assassination by the Taliban if returned to Afghanistan. They also found as a fact that there would not be sufficient protection for them there against that risk if returned. They therefore upheld their claim for humanitarian protection under Article 3 ECHR.[20]

16. The Adjudicators made these factual findings after considering all the evidence in the case at a hearing which lasted for eight days, including evidence from each of the individuals who were cross-examined at length.

17. As the law then stood, the Home Secretary had a statutory right of appeal to the Immigration Appeal Tribunal against the adjudicators' decision on the ground that it was based on an error of law.[21] For these purposes, reaching a decision based on perverse findings of fact is an error of law. The Home Secretary applied to the Immigration Appeal Tribunal for permission to appeal against the Adjudicators' decision. The Tribunal refused the Home Secretary permission to appeal, on the basis that the Adjudicators were entitled to reach the findings they did. The Home Secretary then had the further option of applying to the High Court for judicial review of the Tribunal's refusal of permission, but chose not to do so.

18. The Adjudicators' decision was not based on any controversial interpretation of either Article 3 ECHR or of the Human Rights Act. The decision of the Adjudicators was based on factual findings, arrived at after a full consideration of the evidence in the case. The appellate tribunal refused permission to challenge those findings. The Home Secretary did not avail himself of the further avenue of a challenge by way of judicial review. In other words, the judicial processes for the determination of the factual questions which are at the heart of an Article 3 ECHR claim have taken their course, and there appears to be no grounds on which to complain that the Adjudicators made perverse factual findings or applied a perverse interpretation of Article 3 ECHR. The judicial process of fact finding having run its course, we cannot see how it is possible to criticise the decision without at the same time advocating deportation to face a real risk of torture or death.

19. We think it is also important to point out that this is not a case about threats to national security or public safety. It was accepted by the Government at the hearing before the Immigration Adjudicators that there were no reasonable grounds for regarding any of the individuals as a danger to the security of the UK, nor as constituting a danger to the community of the UK. This was confirmed by the Home Office on the day of the High Court judgment. The nine individuals had all been convicted of various offences relating to the hijacking, but their convictions were overturned by the Court of Appeal on the basis that the jury had been misdirected on the issue of the defence of duress. All but two of the individuals had by then served their sentences in full and the Court of Appeal did not order a retrial.

20. In view of the criticisms made of the High Court judge by the Prime Minister and the Home Secretary, and the Lord Chancellor's statutory duty to uphold the independence of the judiciary,[22] we asked the Lord Chancellor whether he regarded the decision of Sullivan J. in the High Court as "bizarre and inexplicable" or "impeccable". The Lord Chancellor said that the answer to the question whether people who hijacked should be able to remain here was that if they faced death or torture or something similar abroad then the law is that they should remain, and that the question of a balance did not arise because they posed no threat to this country.[23] He said he was not seeking to challenge the Adjudicators' decision in 2004, and that, although there may come a time when it was safe for them to return to Afghanistan, he was not aware of any evidence contrary to the previous findings.[24]

21. We welcome the Lord Chancellor's unequivocal acceptance of the correctness of the original decision in the Afghani hijackers case as a clear application of the requirement of human rights law that prevents deportation where the person faces death or torture or "something similar". In our view high level ministerial criticisms of court judgments in human rights cases as an abuse of common sense, or bizarre or inexplicable, only serves to fuel public misperceptions of the Human Rights Act and of human rights law generally.

Deportation of foreign prisoners

22. When it came to light that a substantial number of foreign prisoners had been released at the end of their sentences without being considered for deportation, some of whom had re-offended, the then Home Secretary, Rt Hon Charles Clarke MP announced plans, in a statement to the House of Commons on 3 May 2006, [25]to change the system governing deportation of foreign prisoners.

23. The new Home Secretary, Dr Reid, said in a newspaper article on 7 May: "the vast majority of decent, law-abiding people … believe that it is wrong if court judgments put the human rights of foreign prisoners ahead of the safety of UK citizens. They believe that the Government and their wishes are often thwarted by the courts. They want the deportation for foreign nationals [sic] to be considered early in their sentence, and are aware that this was overruled by the courts".[26]

24. Referring to the Government's proposals to change the system for deportation of foreign prisoners, the Prime Minister said in the House of Commons on 17 May: "in the vast bulk of cases … there will be an automatic presumption to deport, and the vast bulk of those people will, indeed, be deported, irrespective of any claim that they have that the country to which they are returning may not be safe. That is why it is important that we consider legislating, if necessary, to ensure that such an automatic presumption applies. … Yes; we will make sure that our human rights legislation does not get in the way of commonsense legislation to protect our country."[27]

25. Under the ECHR the UK is under obligations not to deport a foreign national to torture under Article 3 and not to deport where this would be a disproportionate interference with their family life under Article 8 ECHR (e.g. if they had lived most of their life in this country, all of their family and other connections were in this country, and they had no family or other connections in the receiving State). The Human Rights Act gives effect to these obligations by enabling a would-be deportee to challenge their deportation on those grounds in a UK court. We are not aware, however, of any examples in such cases of rulings by UK courts which overrule the Government in a way that is inconsistent with other EU countries' interpretation of the ECHR,[28] which was the Prime Minister's concern in his published letter to the Home Secretary, or which go further than the case-law of the European Court of Human Rights.[29] We therefore do not accept that the Human Rights Act, or its interpretation by UK courts, present any greater obstacle to the deportation of foreign nationals than the limitations on such deportations which already exist under the ECHR itself.

26. We asked the Lord Chancellor and Baroness Scotland whether they were able to provide any evidence that the Human Rights Act or its interpretation by decision-makers, as opposed to administrative error, were responsible for the failure to consider whether foreign prisoners should be deported on their release. Both were unequivocal that the Human Rights Act was not responsible for the failure to consider over 1,000 foreign prisoners for deportation.[30]

27. We welcome the unequivocal acceptance of the Lord Chancellor and Baroness Scotland that neither the Human Rights Act itself nor any misinterpretation or misunderstanding of it by officials was in any way responsible for the failure to consider foreign nationals for deportation. However, we regret that the opposite impression was earlier given by both the Prime Minister and the Home Secretary. We repeat our view that unfounded criticism of the Act from a high level within Government only serves to perpetuate the misunderstandings and misperceptions about the Act amongst the wider public.

The Report on the Anthony Rice case

28. On 10 May 2006 HM Chief Inspector of Probation, Andrew Bridges, published the report of his review of the case of Anthony Rice, a life sentence prisoner who on 17 August 2005 murdered Naomi Bryant following his release from prison on licence ("the Bridges Report").[31] The Report found that, on balance, Anthony Rice should not have been released on life licence in the first place, and that, once he had been released, he could and should have been better managed.[32] It found a number of deficiencies, in the form of mistakes, misjudgments and miscommunications at various stages throughout the whole process of the case, amounting to a cumulative failure. For example, it found that the Parole Board did not have information before it of previous convictions (material on the basis of which it might have made a different decision) and there was a misunderstanding amongst those handling the case about the nature of the hostel and the level of supervision provided.

29. The Bridges Report also finds, however, that one of the reasons why the Parole Board underestimated the risk of harm to others when it decided that he was safe to release was that from the time of his transfer to open conditions in 2001 "the people managing his case started to allow public protection considerations to be undermined by its human rights considerations, as these required increasing attention from all involved, especially as the prisoner was legally represented."[33] In a number of subsequent places in the report, further reference is made to it being an increasingly challenging task for people who are charged with managing offenders effectively to ensure that public protection considerations are not undermined by "the human rights considerations".[34]

30. The DCA's review of the implementation of the HRA describes the Anthony Rice case as an example of a "misunderstanding of human rights considerations", and claims that the Chief Inspector of Probation found in his report on the case that the HRA is being misapplied, notably by allowing a prisoner, whether himself or through his lawyers, to "shift the focus of consideration onto the proportionality of the restrictions to which he is subject, at the expense of assessment of the risk of harm he presents".[35] The DCA Review attributes a clear causal link between these misunderstandings, misinterpretations and misapplications and the death of Naomi Bryant. It states, for example , that "the result of this [misinterpretation of the effect of the Convention rights] can either be simple inefficiency or frustration … or tragedy, as in the case of Anthony Rice",[36] and that "human rights considerations have perhaps nowhere been more tragically misapplied than in the case of Anthony Rice".[37] In his major speech on human rights delivered to the Human Rights Lawyers Association on 29 September the Lord Chancellor repeated these assertions, saying, for example, that "The events surrounding the Anthony Rice case provide a very conspicuous and sobering example of the operational problems which have arisen for key agencies as a result of misconceptions and misunderstanding".

31. We accept that it would be a matter of serious concern if there were evidence to demonstrate that those responsible for making decisions about the release of potentially dangerous prisoners, and for managing offenders, were interpreting the Human Rights Act in such a way as to undermine public safety. We therefore looked very carefully at the Chief Inspector's Report to identify precisely any evidence that this happened at the relevant decision-making points in relation to Anthony Rice, in particular at the time of his release on licence and when deciding the conditions to which he should be subject on release.

32. We were unable to find any concrete evidence in the Report itself that any decision concerning the release or management of Anthony Rice was affected in any way by human rights considerations being given precedence over public protection. There is nothing in the Report to indicate the role played by human rights arguments at the oral hearing of the Parole Board panel on 17 August 2004 at which the decision was taken to release Anthony Rice on licence once appropriate conditions had been finalised.[38] The Report mentions that in the period between that decision and his release on licence the Lifer Review and Recall Section of the Home Office were concerned that the conditions in his licence "might be excessively restrictive in terms of the Human Rights Act".[39] But, significantly, the Report goes on to state that "the advice offered to the Parole Board highlighted the fact that the Act allows for interference with the rights of an individual where this is necessary for public safety and the protection of the rights of others."

33. It therefore appeared to us that the concern repeated throughout the Report, that human rights considerations may be undermining public protection, is more in the nature of a general concern than one based on clear findings that human rights arguments were determinative of particular decisions leading to Anthony Rice being released on licence and managed in such a way that he was not prevented from murdering Naomi Bryant. Indeed, it seemed clear from the Report that it was a combination of a lengthy catalogue of other failures which was responsible for the mistaken decision to release Anthony Rice, rather than any prioritising of human rights considerations over public safety.

34. We therefore decided to write to Mr. Bridges for clarification.[40] We asked if he could let us know precisely what information contained in his report he considers supports his finding that from 2001 "the people managing [Anthony Rice's] case started to allow public protection considerations to be undermined by its human rights considerations, as these required increasing attention from all involved, especially as the prisoner was legally represented". We asked whether he had any further evidence, over and above that already contained in the report, to support that view. We also asked if he could provide any evidence that at the principal decision-making points in the management of Rice's case, including at the time of his release on licence and in deciding the conditions to which he should be subject on release, human rights considerations had the effect described in the report, and whether in Mr. Bridges' view this was because of a correct or incorrect interpretation of the requirements of the HRA by the relevant decision-makers.

35. In his reply Mr Bridges himself points out that his report "made no comment about the Human Rights Act itself" and that it was a huge distortion of his report's findings to say that Rice was released in order to meet his human rights.[41] He also says, significantly, that he did not think that decision-makers are interpreting the Act wrongly, and that in his experience the great majority of case managers are either fully aware that the HRA does not prevent them from carrying out their public protection responsibilities or would at least know whom to consult to check. He has no doubt that Parole Board members and staff have a proper understanding, in principle, of how to implement their public protection duties while complying with human rights considerations. He says the report's comments on the impact of human rights considerations on the decision-making process were much more subtle, relating to the practical circumstances in which case officers found themselves. He says that

"In broad terms our Finding is based on us discovering plenty of evidence of [case officers] discussing the [proportionality of restrictions on Mr Rice], and relatively little of them discussing [how to manage them effectively]. Following our discussions with the people involved we took the view that the attention of the relevant officers was constantly drawn away from the latter towards the former. We used the term 'distracted' to describe this, and as it happens this appears to have been accepted by the people involved as a fair interpretation."

36. We therefore asked the Lord Chancellor whether he now accepted, in the light of Mr. Bridges' letter, that his report does not demonstrate that the Rice case is an example of a tragic misapplication of human rights considerations, or of any misinterpretation or misunderstanding of the HRA or the European Convention on Human Rights ("ECHR") by officials. The Lord Chancellor was very candid in his response, saying that he found Mr. Bridges' letter "very disappointing in the context of his report".[42] He accepted that Mr. Bridges' letter seems "difficult to align with what he says in his report". In the Lord Chancellor's view, the Chief Inspector's report on the Rice case was clear that the Chief Inspector was "concerned that officials involved in the decision in the Anthony Rice release question were distracted by human rights considerations". His letter, by comparison, was, in the Lord Chancellor's view, "opaque", "very difficult to follow" and did not throw much light on the issue. The Lord Chancellor thought that the Government had to go on the basis of what the Chief Inspector had said in his report, not because what he had said in the letter should be ignored, but because the report raised a particular issue which needed to be addressed, namely the risk that officials were being distracted from public safety considerations by focusing too much on human rights considerations. He therefore did not resile from the Government's response to the Rice report, which was to issue proper guidance underlining that public safety comes first. We welcome the Government's readiness to take action to correct apparent misunderstanding.

37. However, in our view, Mr Bridges' letter raises serious questions about the reliance placed on his report in both the DCA Review and the Lord Chancellor's speeches and interviews. First, in our view it makes clear that there was no clear causal connection between any interpretation or application of the HRA and the death of Naomi Bryant, because Rice was not in fact released "in order to meet his human rights". The assertion that the tragic death of Naomi Bryant was therefore caused by officials misinterpreting the HRA therefore is not made out. Second, in our view Mr. Bridges' letter also makes clear that the Rice Report does not demonstrate that officials misunderstood, misinterpreted or misapplied the Human Rights Act or the ECHR in any way. According to its author, the Rice Report raises much more subtle issues about the "practical processes" by which public safety considerations may be affected by human rights considerations.

38. In our view, if the Bridges report demonstrates anything, it is the need for fuller investigation, not of whether officials in the criminal justice system are prejudicing public safety through misunderstandings or misapplications of the Act, but of precisely what Mr. Bridges means by the "subtle processes" to which the HRA gives rise which somehow lead to public safety considerations being given too little weight. The precise way in which Mr. Bridges says that human rights considerations undermine public safety considerations is certainly subtle: it is far from self-evident that because the proportionality of restrictions was more discussed than management of Rice's risk of harm the former must have distracted attention from the latter. It is possible that the passages in the Rice report which ignited the controversy are the product of a misunderstanding of the HRA by Mr. Bridges himself, in that he maintains a dubious antithesis between human rights considerations and public protection considerations, which does not acknowledge that, properly understood, public protection forms a crucial part of an overall human rights perspective in cases such as those of Anthony Rice.

39. In our view, while we agree with the Lord Chancellor's view that it would have been completely wrong for the Government simply to ignore what was said in the Report of the Chief Inspector of Probation,[43] we strongly disagree that the Chief Inspector's Report contains any real evidence that public safety is being prejudiced by officials' misinterpretations or misapplications of the HRA.


40. In our view, whatever other arguments there may be about whether the Human Rights Act should be amended, repealed, or replaced by a UK Bill of Rights, none of the three cases we have discussed so far - the Afghani hijackers judgment, the failure to consider foreign prisoners for deportation, and the Anthony Rice case - demonstrates a clear need to consider amending the Act. In each case, the Human Rights Act has been used as a convenient scapegoat for unrelated administrative failings within Government. The Lord Chancellor expressed his complete agreement that not one of them justifies amendment or repeal of the HRA, which, he says, is the conclusion of the review published in July.[44] Moreover, that review, according to the Lord Chancellor, is not the view merely of one department, but expresses the views of the Government.[45]

41. We welcome the Lord Chancellor's candour in acknowledging that "maybe we were not quite quick enough to spot the absence of human rights issues in relation to all three of the issues".[46] We also accept that, in the circumstances, in which there was considerable public debate about whether the HRA was responsible for various failings, a thorough but expeditious review of the operation of the Act was "the right course for a responsible government."[47] We must, however, draw to Parliament's attention the extent to which the Government itself was responsible for creating the public impression that in relation to each of the three highly contentious issues under consideration it was either the Human Rights Act itself or misinterpretations of that Act by officials which caused the problems. In each case, very senior ministers, from the Prime Minister down, made assertions that the Human Rights Act, or judges or officials interpreting it, were responsible for certain unpopular events when, as we have shown above, in each case these assertions were unfounded. Moreover, when those assertions were demonstrated to be unfounded, there was no acknowledgment of the error, or withdrawal of the comment, or any other attempt to inform the public of the mistake. We very much welcome the Lord Chancellor's assurance that there is now an unequivocal commitment to the Human Rights Act right across the Government but, in our view, public misunderstandings of the effect of the Act will continue so long as very senior ministers fail to retract unfortunate comments already made and continue to make unfounded assertions about the Act and to use it as a scapegoat for administrative failings in their departments.

16   Press Conference with the French Prime Minister, 10 May 2006, Back

17   Government Appeal over Hijackers, BBC News Online, 11 May 2006. Back

18   S v Secretary of State for the Home Dept [2006] EWCA Civ 1157 at para. 50. Back

19   Ibid at para. 51. Back

20   What the High Court decided on 10 May 2006 was that the Home Secretary had acted unlawfully by deliberately delaying giving effect to the Adjudicators' decision, to give himself time to devise a revised policy which would purportedly justify not implementing that decision. It was in respect of this that the High Court said it was difficult to conceive of a clearer case of conspicuous unfairness amounting to an abuse of power by a public authority, and commented that it was particularly disturbing that this was not simply the conduct of a junior official, but was authorised at the highest level. Back

21   Under s. 101 of the Nationality, Immigration and Asylum Act 2002.Permission was required for such an appeal to proceed. Permission would only be granted if there was an identifiable error of law which made a material difference to the decision. Back

22   Constitutional Reform Act 2005, s. 3. Back

23   Q1. Back

24   Q2. Back

25   HC Deb 3 May 2006 cols 969-973 Back

26   "No more cock-ups Home Secretary", News of the World, 7 May 2006. Back

27   HC Deb 17 May 2006 col. 990. Back

28   The approach of the French Conseil d'Etat, for example, which has power to quash a decision of the administration about the country of destination, is that no alien may be sent back to a country "for which there are serious and established reasons to believe that the alien would be exposed there to a real risk for his person, coming either from that State's authorities or from persons or groups distinct from public authorities, as long as the authorities of the country of destination are not able to avoid such a risk by providing appropriate protection": Prefet de l'Aude c. M. Belabdelli, (12 May 2006).This seems, for all practical purposes, to be identical to the approach of the Immigration Adjudicators in the case of the Afghan hijackers. Back

29   Lord Lester of Herne Hill has asked the Minister in a series of PQs whether there have been cases in which the courts of other member states of the EU have interpreted and applied Article 3 ECHR more restrictively than British courts but compatibly with the case-law of the European Court of Human Rights; and if so, whether they will publish details of such cases (see e.g. HL Deb, 17 May 2006 Q for WA 3405).To date the Government has not identified any such case. Back

30   Q4. Back

31   HM Inspectorate of Probation, An Independent Review of a Serious Further Offence case: Anthony Rice (May 2006). Back

32   Ibid,.Para. 1.1.2. Back

33   Ibid, Para. 1.3.1 Back

34   Ibid, Paras 1.3.5, 10.2.12, 10.2.17, 11.3, 11.26. Back

35   DCA review, p.27 Back

36   Ibid p. 25. Back

37   Ibid p. 27. Back

38   Review of the Anthony Rice case, Paras 8.3.1-8.3.3. Back

39   Ibid, Para. 8.3.11. Back

40   Appendix 3 Back

41   Appendix 4. Back

42   Q8. Back

43   Q11. Back

44   Q10. Back

45   Q17. Back

46   Q16. Back

47   Ibid. Back

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Prepared 14 November 2006