Bruce Anderson: The Government must now repudiate the right to asylum

'The asylum judgement threatens our ability to make our own laws and run our own country'

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It is hard to suppress one's laughter when Mr Blair's ministers run into trouble from the judges, over the human rights of asylum-seekers. As usual with this Government's constitutional reforms, the act which incorporated the European Convention on Human Rights into British domestic law was rushed through with a minimum of forethought. Mr Blair had been warned that incorporating the convention would undermine the separation of powers between the judiciary and the executive and politicise the judiciary. As the warnings have been vindicated, it is tempting to revel in its embarrassments.

That would be unwise: greater issues are at stake. The Government has not only blundered into entanglements which threaten the integrity of the law; it has inherited long-standing commitments incompatible with British national sovereignty, even in the diminished form in which we now enjoy it. The asylum dégringolade presents challenges which are more fundamental than a few thousand of dubious asylum-seekers. It threatens our ability to make our own laws and run our own country.

Law is social cement, which is why it is often bracketed with "order". If civilisation is merely a collective dream, as Michael Oakeshott argued, such sweet dreams can only be enjoyed on a well-made bed of order. As they evolved over the centuries, the British legal systems also became guarantors of individual rights. Rights and order need not always be in conflict, for there are few rights more basic than the right to order, and none which can securely be enjoyed in its absence. But the rights of the individual are not always easy to reconcile with the maintenance of order. The ensuing disputes have made law more complex, and lawyers richer.

That said, the dialect between rights and order has been a largely harmonious process, refereed by common law judges, with Parliament as an ultimate court of appeal. Under the English common law, judges have always made law, through judgements which extrapolate established principles to new circumstances, and become precedents. Much of industrial injury law was made in this way, and the common law judges ought now to turn their attention to privacy.

But this judicial law-making has been a cautious, evolutionary process, the late Lord Denning excepted. Equally, Parliament could always intervene if it disliked the judges' decisions; the Liberal government of 1906 passed statute law which overrode anti-trade union judgements.

All this evolutionary harmony is now under threat from the convention. Instead of rights under the rule of law, we have so-called human rights which can mean anything which a judge decides they mean. The problem can be traced back to the early post-war years when our leaders signed various international agreements which seemed harmless at the time, but which had malign long-term consequences. Among them was a UN convention on refugees and asylum; there was also the European Convention on Human Rights.

Britain encouraged the convention, and for a good reason. During the era of Fascism and war, most of the legal systems of continental Europe had been undermined; many judges had helped oppressive regimes to pervert the law. So it was essential that these aligned nations should rebuild their legal structures on sound principles, and we gave this process our benign support. But we never expected that the convention would be invoked against us. Our legal system had not been corrupted.

Over time, European judges developed other ideas. Those who argued for the incorporation of the convention into our own laws had one good point. If the convention does apply to us, it is preferable that it should be interpreted by our judges in our courts. But there is a simple alternative. The convention brought the British people no benefits which they could not easily obtain by their own politicians legislating in their own Parliament, after a public debate and its attendant electoral pressure. So incorporation is not the answer; that lay in repudiation.

A similar argument applies to asylum. In the early 1950s, it would have been hard to foresee the modern refugee problem. As the war receded, the world was becoming more stable. Though there were oppressive regimes, principally Communist ones, it seemed unlikely that they would allow their peoples to emigrate. The politicians who signed the asylum conventions were no doubt thinking back to the days when all the refugees in London could have been accommodated in the old British Museum reading room. To allow those in the grip of a well ground fear of persecution because of politics or religion to find refuge in the UK did not seem an onerous undertaking.

Now, however, it has become unsustainable, and there is no point in deluding ourselves that the problem will disappear if we were swifter to weed out bogus asylum seekers. Up to one quarter of the world's population live in the grip of regimes which could easily arouse well-founded fears – how can British officials possibly assess the individual circumstances of those in remote lands? Equally, there is no moral basis for the distinction between economic migrants and political refugees. Is a starving family less deserving than a political militant, whose own rash behaviour may have incited the persecution that he now fears.

By conceding a general right to physical asylum based on pre-1914 assumption about mass transport and global stability, we have undertaken obligations which we could never discharge. The consequences are not only visible at the Channel ports; they threaten the bipartisan system of immigration control which has helped to take race out of politics.

So we need a government which is brave enough to repudiate the right of asylum. The Home Secretary should be able to admit a small number of refugees annually, but any large-scale effort would require individual legislation. There were instances in which we were right to respond generously; the Hungarians after 1956, the Ugandan Asians, the Indians whom we had encouraged to settle in Hong Kong, plus various officials from the Hong Kong colonial government. But there are no similar cases today; there is nothing to prevent us from hardening our hearts.

There may be some who would argue that what I am proposing is uncharitable and unchristian. If so, they are right, but they are probably also hypocritical. Every day, in sustaining our own living standards, the vast majority of us make routine decisions to spend money on ourselves which the aid agencies assure us that they could use to succour the wretched of the Earth. Almost all of us pull up our own drawbridges against the misery of the Third World.

We should end the asylum problem by withdrawing the right to asylum, while also ensuring that judges can no longer use a foreign convention to prevent ministers from doing their duty.