Anthony Scrivener: Someone has to save us from David Blunkett

Judges must be allowed to counter bad laws such as the Asylum Act

Back in 1803 when we were less civilised than we supposedly are now; when we sent children up chimneys and hanged people for stealing a lamb, the courts developed what was called a "law of humanity'' which required this country to afford destitute foreigners relief to save them from starvation. It took until 2003 and a New Labour Government to get rid of this out- dated liberal principle.

The judiciary, though, is putting up a brave fight to preserve something of this civilised ideal. David Blunkett may have been Home Secretary for only 20 months, but his run-ins with the judiciary have been frequent. And now it has got personal. "Frankly," he said last week, "I am personally fed up with having to deal with a situation where Parliament debates issues and judges then overturn them."

What caused this outburst of wrath from Mr Blunkett against the courts of this country, and Mr Justice Collins in particular, was that the judge blew a hole in the Government's asylum strategy, by ruling that the Government cannot remove benefits from people who fail to claim asylum as soon as possible after they arrive in Britain.

Mr Justice Collins told the High Court that the measure, which came into force last month, was contrary to law, and breached three articles of the European Convention on Human Rights, which New Labour itself promulgated.

The case concerned the Nationality Immigration and Asylum Act 2002. The decision of Mr Justice Collins with respect to this particularly nasty piece of legislation was hardly surprising. Asylum-seekers who did not apply for refugee status at a point of entry were to be deprived of all financial support. Since they are forbidden to work, their only hope of survival is scrounging scraps from dustbins or by begging. It can't be more than a few steps for some of these desperate people to prostitution and other crime.

The evidence revealed that if all the asylum seekers did apply at the point of entry, the system would seize up. The immigration authorities could not cope. It also transpired that those who applied when already in the country were just as likely to be accepted as refugees as those who applied on entry.

You may wonder how this grizzly piece of legislation ever got on to the statute book. The inspiration for it seems to have been a wish by New Labour to outdo the Conservatives in being beastly to asylum-seekers, which is considered by our more cynical politicians to be a good electoral ploy, and popular with the readers of the Daily Mail.

With a huge parliamentary majority Mr Blunkett had no difficulty pushing this Bill through, despite rumblings from some of Labour's more critical backbenchers, who still remember what the Labour Party is meant to stand for.

However, having pulled off this parliamentary coup, Mr Blunkett could hardly have expected a smooth ride. He had been warned by the Joint Committee on Human Rights that there could be problems with the European Convention. Both the Refugee Council and Refugee Action warned him too. It must have occurred to Home Office lawyers as well, although perhaps they did not mention it through fear of being shouted at by their irascible boss.

As a barrister, Mr Collins, as he then was, because of his ability, frequently appeared for the Government but when he became a judge he joined an entirely independent judiciary. He does not have to please the electorate or get elected or make political speeches. He applies and interprets the law and, unlike the Home Secretary, if he gets it wrong the appeal courts will put him right, and what is more, he cannot be bullied by irate ministers.

Totalitarian states do not like an independent judiciary or juries for obvious reasons. Strangely New Labour does not like them either. They have already launched an attack to diminish the jury system but the independent judiciary is a more difficult nut to crack. A resolution of both Houses of Parliament is needed to dismiss a High Court judge and this has never been done.

Poor President Mugabe has exactly the same problem. He has certain independent judges who insist on applying the rule of law in Zimbabwe and so frustrate his land-grabbing policies. Perhaps he and Mr Blunkett should get together and exchange ideas when we are allowed to speak to Mr Mugabe again.

Mr Blunkett points out that he was elected while judges such as Mr Justice Collins are messing it all up and frustrating government policy. I do not recall the notion that making asylum-seekers destitute was mentioned in the New Labour election manifesto.

More to the point, none of those who voted for him expected him to abolish the rule of law so he could always get his way, or wished to give him the omnipotence of a Stuart monarch. It is the courts who protect citizens from the unlawful actions of the state and we may be forgiven for thinking that this was rather a good idea.

I accept that for most of the time the unfortunate Home Secretary does not have a clue about what is going on, or what his officials are up to. The bombs go off all around him and only occasionally he appears through the smoke when some official plucks up courage to tell him what has happened. Usually this occurs when the press hears of a particularly outrageous case, such as the bungled at- tempt earlier this month to deport to the United States an elderly grandmother who had spent her entire life in England – a civil service masterstroke – on the grounds that she had been born in America (the fact that she was the child of a British woman was disregarded until the late intervention of her constituency MP).

But it is not just Mr Blunkett. Other home secretaries have had their problems with the courts. Kenneth Baker once gave an undertaking to a court through counsel that an applicant would not be deported pending an appeal. Having given that solemn undertaking the unfortunate applicant was then deported. Mr Baker was found guilty of contempt of court, although no penalty was imposed. I do not recall Mr Baker getting steamed-up and attacking the judiciary.

Mr Blunkett appears to merely be heeding his master's voice on asylum seekers. The Prime Minister, too, is increasingly irritated by the judiciary, and is reported to have ordered new legislation to limit the role of judges in the interpretation of international human rights obligations. This, he says, will reassert the primacy of Parliament. But the legislature in our unwritten constitution has always been our bulwark against the excesses of Parliament.

Attempts to restrict the influence of our judges will not work because the Government cannot limit the powers of the European Court of Human Rights at Strasbourg, which is the final court of appeal. Like all those other European countries who are signatories to the convention and who do not have the same problems with it as New Labour, he will have to govern subject to the convention. That promises a better guarantee for individual freedom than reliance upon a power-soaked New Labour government.

Other cultures see the judiciary differently of course. A delegation of Chinese lawyers visited the Hong Kong courts before the Chinese takeover took place. They showed visible signs of distress when they found ordinary people challenging the decision of the government. This was quite shocking to any decent communist.

So it is not all bad, with Mr Mugabe and the People's Republic of China on his side, Mr Blunkett does have at least some support.

Anthony Scrivener QC is a former chairman of the Bar Council