Asylum seekers are not popular. Conservative and Labour governments have made reducing their numbers a policy priority. At the same time they have acknowledged, sometimes unwillingly, that genuine refugees must be protected. This is the UK's obligation under the 1951 refugee convention which was part of the international postwar legal settlement, designed to ensure that Nazi genocide could not be repeated.
The government recently published a new asylum bill which, in a few short pages, threatens both the fairness of the immigration system and the antiquated machinery of our unwritten constitution.
The bill is due to have its second reading tomorrow. In the debate on the Queen's Speech, Michael Howard drew attention to the proposal to take the children of failed asylum seekers into care.
The bill contains a number of other objectionable provisions: new criminal offences for undocumented applicants; withdrawal of support from families who do not leave; electronic tagging of detainees. Amnesty International and the Refugee Council have expressed the strong view that the bill will severely damage the prospects of achieving a fair asylum system.
In all of this, one provision stands out. Clause 10 sets out to do something that no British government has ever attempted: the removal of the entire asylum and immigration process from the scrutiny of the courts.
Those seeking asylum or entry into the country for any reason will no longer be permitted to question decisions in the courts. They will be confined to a single appeal to an asylum and immigration tribunal. If this tribunal gets it wrong there is no comeback. The immigration appeal tribunal will be abolished and, in almost all cases, the courts will be unable to intervene. Deportation and removal decisions by the immigration service will not be reviewable.
This proposal is extraordinary for a number of reasons. It will create a judicial body which is uniquely unaccountable. The most careful and conscientious courts sometimes make mistakes.
Up to now, every court or tribunal system has recognised this and has included the possibility of one or more appeals. The present system of immigration adjudicators is no different from any other.
In 2002, adjudicators made nearly 65,000 decisions, more than 3,000 of which were overturned by the immigration appeal tribunal. The same adjudicators will be the members of the new tribunal. From now on their mistakes will be left undisturbed.
The government has not explained how these individuals will achieve infallibility. Doubts have already been expressed as to whether any senior judge will be prepared to serve as the president of this objectionable tribunal.
As well as removing appeal rights, the bill contains an "ouster clause". In practice, this will prevent the courts from reviewing any deportation and removal decision and any decision of the new tribunal. There can be no challenge for "lack of jurisdiction", "error of law" or "breach of natural justice".
This means that if, for example, the tribunal fails to hear argument from both sides or misreads a statute, there is no comeback. If the tribunal does something it has no power to do, it is just too bad. The tribunal will be able to do whatever it wants. It will be the ultimate unaccountable public body.
In the past, governments have often been tempted to try to avoid judicial scrutiny of their decisions. In almost every other country in the world, this would be forbidden by the constitution. In Britain, the unwritten constitution requires restraint on the part of parliament and the government.
For nearly 40 years, governments of both parties have held back. They have accepted that the rule of law requires that the courts must have the final say as to whether the law has been broken.
This bill tries to turn the clock back. A spanner has been tossed into our creaking constitutional machinery. Doubts are already being expressed as to whether the machinery can survive. It is significant that, earlier this month, Lord Woolf suggested that the time had come to think about a written constitution for the UK.
Asylum seekers are easy targets, and some may feel that "cheap one-level justice" is all they deserve. This would be to forget the lessons that were so painfully learned in the 1940s. To ignore the plight of the refugee is to provide succour for the persecutor and the torturer.
And there is a more general lesson. For a centralising and controlling government, the courts are an inconvenience. If they can be dispensed with in relation to immigrants and asylum seekers, why not provide special regimes for other unpopular groups?
In a lecture last month which he titled "Guantanamo Bay, the legal black hole", a senior law lord, Lord Steyn, quoted a recent comment that "we must respect the humanity of aliens lest we devalue our own. And because it is the right thing to do". Lord Steyn went on to say that this observation "is one that we, in the United Kingdom, ought also to heed".
His point is equally valid in relation to clause 10. This provision should never have been included in a government bill. There is still time for the government to see sense. We hope that it will.
· Hugh Tomlinson QC and Booan Temple are barristers at Matrix chambers. comment@theguardian.com