Daily Mail, February 21 2003

The asylum judgment by Mr Justice Collins threatens to turn the simmering feud between the government and the judiciary into all-out war.

The Prime Minister has ordered new legislation to stop the courts thwarting the will of Parliament in bringing the asylum crisis under control.

His fury is entirely understandable. Time and again, the courts have twisted asylum policy out of recognition. Mr Justice Collins is a serial offender, having overturned the almost identical attempt in 1996 by the then Tory government to stop benefit payments to asylum seekers who did not automatically identify themselves as such when arriving in this country.

That policy caused asylum applications to drop to 30,000 per year. But after the judge's ruling they rose disastrously to more than 70,000. Now the same judge has repeated the ruling that created the problem the government is trying to address.

By carrying on like this, the courts have set themselves against the overwhelming wishes of the public. No fewer than 80% of people – including many minorities -- want the government to take tough action to curb the abuse of asylum.

The crisis is acute. No-one wishes to refuse entry to genuine refugees. But of the 100,000 claiming asylum each year, 60,000 are judged not to be genuine; and yet of these, only 12,000 are removed. The rest simply vanish into the country leaving the government without the faintest idea who is still here and who has departed – and all this with Britain facing the gravest possible threat of terrorism.

It is not surprising that Home Secretary David Blunkett, struggling with the government's most serious domestic political problem, has blown a fuse. Our current asylum shambles is to a considerable extent the result of decades of judicial interference with immigration and asylum policy.

In 1989, Strasbourg judges extended the scope of the article in the European Convention on Human Rights prohibiting torture or degrading treatment in a ruling that made it impossible for us to deport illegal immigrants -- including terrorists -- to anywhere the judges thought such abuses might be practised. So we now have the ludicrous situation where we cannot deport a terrorist to America because it has the death penalty.

Meanwhile, English judges began to interpret the 1951 UN Convention on Refugees much more broadly than other countries, so that our definition of a refugee was expanded from its original meaning of someone persecuted by the state to anyone facing the threat of attack by violent groups. So now we have the extraordinary situation where we grant asylum to former fighters with the Taleban, against whose tyranny we went to war.

These two rulings, which have turned our asylum law into farce, took place against the background of a rising tide of judicial activism in Britain. A mere twenty five years ago, the judiciary jealously guarded its independence from politics. But then two things happened to change the way the judges saw themselves.

The first was the increasing ambit of European human rights law, with the Strasbourg judges progressively increasing their scope as part of the growing ideological belief in universal legal principles that trumped the law of individual countries. Although the Strasbourg court is nothing to do with the European Union, this ideology fitted the accelerating movement towards political union in Europe and the idea of a supranational political entity.

This encouraged English judges to flex their muscles in new directions. During much of the Thatcher years, the Labour party appeared near to its demise and provided little effective opposition; this encouraged the judges to take upon themselves an opposition role. They began to challenge government policy more and more through the increasing use of judicial review – especially over asylum , which offered most opportunities for this new and exciting role.

The result was that they came to think of themselves in a much more political way. When the Labour government came to power, it made a bad mistake. Instead of putting the judges firmly back in their box, it entrenched their new role by incorporating the Human Rights Convention into English law.

It thus made a rod for its own back. All Mr Justice Collins was doing, after all, was taking advantage of the very role in bringing the government to heel that Mr Blair had so eagerly given him.

Now, like King Lear making empty threats to his all-powerful daughters, the government is said to be planning to limit the role of the judges in interpreting international human rights obligations.

If so, it will fail once again. It will not deal with this dual crisis over asylum and judicial activism unless it tackles both problems at source.

The fundamental problem over welfare benefits for asylum seekers lies not in the court ruling but in the policy itself. Welfare benefits are part of the compact between a state and its citizens. By making them available to some asylum seekers but not to others, the government makes it inevitable that, in the interests of justice, claimants have to be able to prove whether they are entitled to them.

The point the government has failed to grasp is that the premise itself is wrong. Asylum seekers are not yet citizens. And we know that the vast majority are not entitled to be considered as such. At the same time, we want to be generous to true refugees, and we wish no-one in our country to be destitute.

The essence of the problem is that we treat asylum-seekers prematurely as citizens, free to seek illegal work or claim benefits. The solution, in the interests of justice, compassion and order, is to recognise that this is wrong and unjustifiable.

Instead, we should send back those who clearly should not be here before they enter (indeed, anyone entering from safe France is by definition not a refugee) and securely detain the rest while their claims are processed. This would mean no destitution and no uncontrollable flood; instead a humane, fair and orderly approach.

But to do this, Mr Blair has to rewrite both asylum and human rights policy in a tough, uncompromising and focused way. First, Parliament should pass its own asylum law, defining exactly what we mean by the term refugee. This would reclaim asylum policy from the clutches of the judges who have wrenched it into such disrepute.

Second, we should withdraw from the human rights convention. At the very least, we should not re-enter until we have secured the kind of reservations entered by other countries to ensure that we are no longer forced to act against our own interests.

Ideally, we should stay out of the ECHR and tear up our Human Rights Act altogether. For this culture of rights has not expanded freedom. Instead, it has given power to unelected judges to make questionable decisions on issues which properly belong to Parliament. The only things that have expanded exponentially are judicial hubris and the parasitical industry of human rights lawyers.

The judges are wrongly playing politics. But the real fault lies with the government, which will not face up to the dramatic reversals of policy that are needed if this twin crisis is to be solved.

Posted by admin at February 21, 2003