MOVES TO END THE JUDICIAL REVIEW OF TRIBUNAL DECISIONS IN ASYLUM CASES ARE AN AFFRONT TO COMMON LAW AND HUMAN RIGHTS, ARGUES ROGER SMITH

Imagine a tribunal that adjudicates on issues that are among the most politically charged of the day.

Its decisions cannot be challenged even if they are irregular, made in the absence of jurisdiction, in breach of provisions of natural justice or might otherwise be challengeable for any other reason.

Review by any superior court is available only at the instigation of the tribunal itself.

Such a monstrosity would surely be a textbook example of bad governance - an adequate description of the Star Chamber in its heyday - or, more topically, a fair representation of government plans in the Asylum and Immigration (Treatment of Claimants etc) Bill that has just begun its progress through Parliament.

The perniciousness of the plans to oust judicial review of tribunal decisions on asylum is the greater because everyone, including the home secretary, accepts that the quality of primary decision-making is hopelessly low.

Indeed, David Blunkett told the House of Commons just before Christmas that ' we accept, as ministers, that we need to take steps ...

to improve decision making'.

It is hard to imagine that amalgamating the two current levels of appeals, abolishing a right of statutory review only introduced in last year's asylum legislation, and unprecedented ouster provisions of the kind described will assist this objective.

Indeed, we can predict the opposite.

The exclusion of judicial supervision is pretty well guaranteed to encourage sloppiness and bias.

The home secretary has blithely certified that these provisions in the Bill comply with the requirements of the Human Rights Act.

It may not be quite so simple.

Article 6 gives the right to 'a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law'.

This wording is repeated in article 47 of the European Charter of Fundamental Rights.

Thus, European jurisp-rudence through the convention and the charter buttresses common law support for the necessary 'fairness' of decision-making tribunals.

Hence, the former Lord Chancellor, Lord Irvine, fairly summarised both by reporting in 1999 that 'English courts attach great importance to the citizen's right to access to justice; and judges have now come to speak of this as a constitutional right'.

Such a position implies two safeguards uniting the traditions of the common law with the principles of human rights.

The first is an effective legal procedure.

This is specifically guaranteed by articles 6 and 13 of the convention and, domestically, by a string of cases that put flesh on Magna Carta's declaration that 'to no-one will we deny or delay right or justice'.

These led to the emergence of a robust assertion by the courts of a right of judicial review of decision-making by inferior tribunals, even in the absence of an express right of appeal.

Such a concern with a procedural remedy is now to be combined with the emergence of a right to legal aid, implied in the European Convention and now explicitly enshrined in the language of article 47 of the European Charter of Fundamental Rights.

Mr Justice Laws, bringing together the traditions in a 1997 case that concerned the availability of legal aid, prefigured Lord Irvine's words: 'The right of access to the court is as near an absolute right as any which I can envisage.'

We know from more recent history than the Star Chamber what happens when tribunals are exempt from judicial supervision - particularly when they are adjudicating over decisions in areas of government policy where popular prejudice is rife.

In the late 1970s and early 1980s, the judges - particularly Lord Denning - resisted intervening to supervise the quality of decision-making by supplementary benefit appeal tribunals.

The courts, thereby, effectively acquiesced in pretty rough justice for the claimants of welfare benefits.

Slowly, the judiciary reformed itself to the extent that a government report famously revealed its shock that tribunals were being required 'not only to act legally, but reasonably'.

The result, very creditably, was that governments - Labour and, particularly, Conservative - took a range of steps to upgrade the quality of decision-making at several levels.

At primary level came the creation of 'adjudication officers'; at secondary level there was a complete revamp of the tribunal system; and finally by a right of appeal on a point of law to a third level of decision-making - social security commissioners.

By happenstance, some of the key players of this earlier drama remain engaged in the current asylum proposals.

Chief among them is the current chairman of the Council on Tribunals, Lord Newton.

Formerly, as a Home Office minister, he oversaw with considerable commitment the adjudication reforms of the early 1980s.

Lord Newton's council has been harsh on the poor quality of initial Home Office adjudication, calling only last April for 'better quality decision-making at first instance'.

These provisions of the Asylum Bill exhibit all the hallmarks of policy-making for show rather than substance.

They are objectionable under the principles both of common law and human rights.

Such an ouster clause should be offensive to all who value good governance, whatever their views on the control of refugees.

Let us hope that Parliament has the sense to throw it out.

Roger Smith is the director of the human rights campaigning group Justice