I’ll be my own judge

The judiciary and the Government are back on a collision course following Mr Justice Collins’ explosive judgment on the welfare entitlements of asylum seekers earlier in the month. The 36-page ruling itself was a complex legal and humanitarian response to the occasionally horrendous plight of six refugees – not the kind of thing you can sum up in less than 20 words, although former Tory MP David Mellor was willing to have a crack at it. “It’s their human right to sponge off us… but not our human right to tell them to f*** off,” he thoughtfully précised in his column in The Sunday People.

The long-held Home Office view of Sir Andrew Collins QC, president of the Immigration Appeal Tribunal, is that he is a serial offender, having clashed with ministers over the legality of various policies no less than six times now (the Daily Mail listed them all). Nor is it the first time that he has defied the present Home Secretary over immigration: he temporarily closed down the Government’s flagship Oakington Reception Centre for asylum seekers in September 2001.

If David Blunkett was “deeply disturbed” over Oakington, he was incandescent with rage over this latest judicial slight. “I don’t want any mixed messages going out, so I’m making it absolutely clear that we don’t accept what Mr Justice Collins has said,” he fumed on The World At One on BBC Radio 4. “We’ll seek to overturn it. We’ll continue operating a policy that we think is perfectly reasonable and fair.”

The following day the case had been elevated from a critical test case on the Government’s asylum policy to a defining moment in the battle between our elected representatives and those “dictators in wigs”, as one overheated commentator in the Daily Mail put it. “David Blunkett declared war on judges yesterday,” the paper exclaimed. The minister was on hand to up the ante even further. “If public policy can be always overridden by individual challenge through the courts, then democracy itself is under threat,” he told The Daily Telegraph.

Judge Collins, who came to the Bar via Eton and Cambridge, has been singled out as the public face of an unaccountable and aloof judiciary holding our politicians to ransom. The apparent willingness of the Prime Minister to derogate or pull out altogether from the European Convention on Human Rights over curbing the intake of asylum seekers shows what is at stake. Following this month’s ruling, a Number 10 insider revealed that Tony Blair was considering legislation to “enshrine the sanctity of Acts of Parliament and limit the power of the judiciary to alter its meaning by developing ‘case law'”.

The legal community has been typically supportive of the lawyer and his ruling. “A victory for justice, common sense and humanity,” celebrated the civil rights group Liberty.
“When politicians start complaining about judges, it just sends a signal that they’re doing their jobs properly,” a Bar Council spokesman noted.

The Daily Express caught up with the judge’s wife, an ex-barrister, outside their “large detached home in leafy Dulwich, South London”. “It’s outrageous to say he’s not in touch with the real world,” she exclaimed. “He goes shopping in Sainsbury’s, for goodness’ sake.”

According to the Lib Dem peer and human rights lawyer Lord Lester QC, the recent ministerial outburst and ensuing media coverage has been “outrageous” and more reminiscent of Zimbabwe. “The Home Secretary should never have spoken as he did and I don’t think the Daily Mail should have written as it did,” he reflects. Lord Lester believes that the Collins ruling was compassionate, measured and above all right in law.

The legal challenge concerned the meaning of the Nationality, Immigration and Asylum Act 2002, Section 55, which required the Home Secretary to refuse to provide state support for an asylum seeker “if he is not satisfied that the claim to asylum was made as soon as reasonably practicable”. For the Government, this was a key plank to its new ‘get tough’ policy. “Mr Justice Collins has driven a coach and horses through a key piece of legislation, and the dodgy asylum lawyers will be rubbing their hands with glee,” observed Stephen Pound, Labour MP for Ealing North.

Whatever anyone’s view about the necessity of a ‘get tough’ policy, the law was only introduced last month but has already produced some harsh consequences. “When the legislation was being passed through Parliament, the Government didn’t say that new arrivals would be left to sleep rough, reliant on food parcels and blankets to help them through the winter,” says Margaret Lally, acting chief executive of the Refugee Council. “Yet this is precisely what’s happening, and every day asylum seekers are arriving at our doors freezing cold, hungry, exhausted and confused.” Immigration lawyers attest to people having made their claims within 24 hours of arrival and still being turned away.

“The facts of those six test cases prove that the present government’s policy is unfair and completely lacks humanity,” reckons Lord Lester. One such story concerned a 22-year-old Angolan man, whose father was shot and his mother and sister raped after soldiers raided his home. He was arrested and beaten, but escaped. On arriving in London, he initially found a bed, but had to sleep rough in the street outside the Home Office in Croydon the following night.

The judge gave full vent to his frustration with the existing system, in particular the long delays. “I am, of course, well aware that the volume of those entering the United Kingdom, usually unlawfully, and seeking asylum, has created and is continuing to create what seems an intractable problem,” he said. “Many claims are refused, but the sheer numbers have resulted in unacceptable delays.”
Judge Collins is known for his outspoken approach. As one QC recently said of him: “His manner is friendly, but he takes a strong, interventionist line in court. He likes to impose his personality on the case and isn’t afraid to go out on a limb.”

According to Mellor’s analysis in The Sunday People, this was “a political decision through and through”. “He’s a perfectly decent man and we exchange a friendly word whenever we meet,” Mellor confided to his readers. “But he’s a left winger through and through… The Convention on Human Rights is full of such pious hogwash and can be interpreted any way you like. And of course, Andrew put the most permissive left-wing gloss possible on it.”

The judge acknowledged that his ruling would frustrate the intentions of ministers, or as he put it “weaken the anticipated effect” of the rules. But he added: “Parliament can surely not have intended that genuine refugees should be faced with the bleak alternatives of returning to persecution or of destitution.”

‘Surely not’? His feigned surprise was a nod to an earlier controversial ruling. Compare this with his 1996 judgment, when he observed: “I find it impossible to believe that Parliament intended that an asylum seeker, who was lawfully here and who could not be lawfully removed from the country, should be left destitute, starving and at risk of grave illness and even death because he could find no one to provide him with the bare necessities of life.” The Home Secretary then was Michael Howard and the legislation was the three-month-old and very controversial Asylum and Immigration Act. ‘Impossible to believe’ or not, that seemed to be the intended effect of the legislation. In that case he told ministers that it was illegal for them to leave thousands of asylum seekers destitute on the UK’s streets and he reminded them they had a duty under Welfare State legislation, passed by the 1945 Labour Government, to provide “the basics for survival” for those in need.

In this month’s judgment, Judge Collins observed that the Government’s human rights legislation had replaced the English common law of humanity. The law was established in 1803 in Eastbourne, Sussex, to ensure that refugees from Napoleonic rule were saved from starvation.

“It would be surprising if the standards of the Human Rights Convention were below those believed 200 years ago to be applicable as the law of humanity,” reflected the judge.
Mr Justice Collins