The Government’s Asylum and Immigration Bill has caused a furore on its own back benches. Last month, in the second reading debate, MPs criticised the provision for the withdrawal of benefits from failed asylum-seekers, which could, so they believed, result in children being taken into care. Social services directors described it as belonging “to an earlier century”.

But in the Bill, which entered its committee stage in the Commons yesterday, there is a more obnoxious and constitutionally far-reaching proposal. Under the euphemistic heading “Unification of appeal system”, Clause 10 excludes the courts from jurisdiction over decisions made by the new Asylum and Immigration Tribunal.

A failed asylum-seeker will have no redress against the tribunal even if he or she believes that its decision is capricious or unreasonable, or that it has made an error in law or breached natural justice. Nor can a court review the decision to deport a failed asylum-seeker. Review will be possible only when the president of the tribunal, who need not be a judge, believes that an important or complex point of law is involved. The president is thus invited to be a judge in his or her own cause. It is unlikely to be conducive to the efficiency of a tribunal if there can be no appeal from its decisions. As the former Shadow Home Secretary declared in 1992, an adjudicator “who knows that its decision may be subject to appeal is likely to be a good deal more circumspect, careful and even-handed than the officer who knows that his power of decision is absolute.”

The clause, however, is not to be condemned merely because it will promote inefficiency. It is a constitutional outrage, and almost unprecedented in peacetime. Even in the Second World War, Regulation 18B allowing the Home Secretary to detain suspected enemies of the country was reviewable by the courts. In peacetime, every tribunal outside the area of national security is subject to an appeals procedure. As Lord Denning declared in 1957: “If tribunals were to be at liberty to exceed their jurisdiction without any check by the court, the rule of law would be at an end.”

It is a basic principle of English law that the High Court exercises supervisory jurisdiction, through judicial review, over administrative decisions and the work of tribunals, so that there is a remedy where unfair decisions are made or when mistakes in law occur. It is vital that this principle is observed in the case of vulnerable people facing deportation to countries where they fear oppression or torture.

But there is an even more fundamental issue. The Government passed the Human Rights Act in 1998 making judges the guardians of our basic rights. Article 6 of the Act provides for the right to a fair trial. In the past, the Government has relied upon the possibility of judicial review from the decisions of an administrative tribunal as meeting this requirement. Article 13 of the European Convention on Human Rights requires there to be a remedy for anyone who believes that his or her rights have been violated. If, however, the jurisdiction of the courts is excluded, so that judges are unable to determine whether or not there has been a violation, the protection given by the Human Rights Act becomes illusory.

It is dangerous to identify and vilify, partly in response to a press campaign, a vulnerable minority group as unworthy of basic human rights, and then to remove from them the protection of the law. This precedent could be used to breach the rights of every unpopular minority in the country.

“It is a novel, bizarre and misguided principle of the legal system,” declared the Shadow Home Secretary in 1992, “that if the exercise of legal rights is causing administrative inconvenience, the solution is to remove that right.” The Shadow Home Secretary in 1992 was Tony Blair. He is a humane man and a trained lawyer. He must have serious qualms about Clause 10. He should now instruct his illiberal Home Secretary to remove it from the Bill. If he does not, then the House of Commons must do the job for him.

The author is Professor of Government at Oxford University

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