If you’re in the business of predicting court judgments, you can sometimes end up looking a mug. My last prediction wasn’t the best. Oh, well. At least the judges agreed with me on the time limit.

Anyway, while the downside of legal punditry can be a mild judicial mugging from time to time, the upside is that occasionally you manage to get it right. After the Supreme Court hearing in Humphreys v HMRC, about sex discrimination in the child tax credit system, I wrote:

I think judgment in this case will be for HMRC .. dismissing Mr Humphreys’ appeal and upholding the Court of Appeal’s ruling. I think the Justices are likely to conclude that HMRC is right about the test for justification and that in the social context, a “bright lines” approach to awarding child tax credit, even if it leads to some distributive unfairness at the margins, is justified.

And so it’s proved, today’s judgment by Lady Hale (which which all the other Justices agree) coming to just those conclusions. To be fair, I don’t think this was a hard one to call, as the unanimous judgment perhaps suggests.

At paragraph 19 Lady Hale says (the links are mine, obviously; I look forward to the day when court judgments contain their own hyperlinks):

It seems clear from Stec .. that the normally strict test for justification of sex discrimination in the enjoyment of the Convention rights gives way to the “manifestly without reasonable foundation” test in the context of state benefits. The same principles were applied to the sex discrimination involved in denying widow’s pensions to men in Runkee v United Kingdom [2007] 2 FCR 178, para 36. If they apply to the direct sex discrimination involved in Stec and Runkee, they must, as the Court of Appeal observed (para 50), apply a fortiori to the indirect sex discrimination with which we are concerned.

The meat of her reasoning comes in paragraphs 29 to 31:

The state is, in my view, entitled to conclude that it will deliver support for children in the most effective manner, that is, to the one household where the child principally lives. This will mean that that household is better equipped to meet the child’s needs. It also happens to be a great deal simpler and less expensive to administer, thus maximising the amount available for distribution to families in this way …

.. The ideal of integrating the tax and social security systems, so as to smooth the transition from benefit to work and reduce the employment trap, has been attractive to policy makers for some time. The introduction of CTC (and working tax credit) was a step in that direction. In my view it was reasonable for government to take that step and to regard the targeting of child support to one household as integral to it …

.. It is also reasonable for a government to regard the way in which the state delivers support for children, and indeed for families, as a separate question from the way in which children spend their time.

and her conclusion is at paragraph 33.

For all the reasons given, I conclude that the “no-splitting” rule is a reasonable rule for the state to adopt and the indirect sex discrimination is justified.

Fortunately this result means the Supreme Court could avoid the extremely tricky technical legal question of what possible remedy it could give Mr. Humphreys, had he won.

Lady Hale couldn’t resist a judicial policy suggestion, with which I’m sure Lord Wilson must have heartily agreed, given what I called his impromptu judicial rant at the hearing about “the barrenness of the position of the family courts”:

Some might think that the ideal solution would lie with restoring to the family courts the power to make appropriate orders to deal with such payments, either by ordering one parent to share it with the other, or by ordering a periodical payment to take account of the benefits which one parent receives .. Unfortunately, the advent of the child support scheme has removed the possibility of doing justice from the courts. To restore it would obviously be the more rational solution to the problem under discussion.

Whether giving judges power to micromanage the distribution of child tax credit regardless of Parliament’s broad policy conclusion would really be the most rational solution from the point of view of children, the taxpayer or society at large, I’m less sure.

A panel of five judges meets at the European Court of Human Rights today to decide whether or not to grant Abu Qatada’s request that his case be referred to the Grand Chamber of the Court.

You’ll remember that following the Chamber’s ruling in January (saying his deportation to Jordan would not breach the ban on torture, because assurances giving to the UK by Jordan could be relied on; but would breach the right to a fair trial, because of the risk he’d be tried using evidence obtained by torture) Abu Qatada appealed on 17 April – day late according to Theresa May, but just in time according to the Court’s staff, who I think are right.

So: how will the panel approach today’s decision? Should they grant the referral? Will they?

The important point to note is that this decision is not simply about the time limit. The decision is governed by article 43 of the European Convention on Human Rights, which says

1. Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber.

2. A panel of five judges of the Grand Chamber shall accept the request if the case raises a serious question affecting the interpretation or application of the Convention or the protocols thereto, or a serious issue of general importance.

So the case must not only be in time: it must be exceptional. The Court’s practice note on article 43 referrals tells us that only about 5% of referral requests are actually granted. But Article 43 also makes clear that the request will be accepted if the case raises a serious question of interpretation or application of the Convention, or a serious issue of general importance – and I think this case does so. This is, in my view, an exceptional enough case to be referred.

I don’t think it involves a serious question of interpretation of the Convention – but it does involve serious issues of its application, which are of general importance.

The Court’s practice note glosses article 43 further by saying that cases that will be sent to the Grand Chamber are likely to belong to the following categories:

(a) Cases affecting case-law consistency, when a Chamber judgment significantly departs from the previous case-law;

(b) cases which do not disclose inconsistency with the previous case-law, but which present an opportunity for development of the case-law where this is considered appropriate;

(c) cases in which it’s felt that clarification of the relevant basic principles is needed;

(d) cases in which the Grand Chamber may be called upon to re-examine a significant development of the case-law by the Chamber, where the Panel feels confirmation (or rejection) is needed from the Grand Chamber. This is notably the case when the Chamber has found a violation of the Convention in circumstances which, in the past, had not systematically led to such a conclusion;

(e) cases concerning “new” issues touching on a relatively new field of law which has not previously been examined by the Court, and/or which is socially and politically sensitive;

(f) cases raising a “serious issue of general importance” at European or global level;

(g) “high-profile” cases, due to the complexity of the legal issues they raise, the serious implications for the state concerned, the identity of the applicant or from the fact that the application concerns matters which are at the centre of a sensitive national, European or global debate.

Neither (a) nor (b) applies in this case; it’s doubtful that (c) applies here, either.

I think though that (d) does apply, since this is the first time that deportation has been found in breach of the article 6 because the potential use of torture evidence risks a flagrant denial of justice. It might be objected that Abu Qatada won on this aspect of the case – what he wants reviewed is the decision that his deportation would not breach the ban on torture. But that decision in itself is arguably a significant development, and what matters under article 43 is that the case is exceptional one: it’s not clear that the Panel is limited to considering only those aspects of the Chamber judgment to which Abu Qatada objects. In my view it can look at the case as a whole.

And undoubtedly this case falls into both categories (f) and (g).

For all those reasons – and because the referral request was in my view in good time – I think the Panel should accept the referral today. I expect they will.

Two more points. Normally I don’t think these decisions are publicly announced on the day – typically the Court issues a press release some days or even weeks after a meeting like this, announcing the decisions made on a number of cases. But given the interest interest in this case, I doubt we’ll be in the dark long after this decision is made.

Secondly, the Court’s practice is not to give reasons for their decision, either way. If the request is refused, in other words, that will not tell us the Court agrees with Theresa May on the timing issue. It’s more reasonable to infer that they disagree with her if they do accept the referral – but even that isn’t 100% obvious. It’s not that I think the Court has a “discretion” to accept a later request.

I do, though, think it’s conceivable that the Panel might see the timing issue as in itself an important legal point that requires clarification, and feel that it can be “rolled up” with the merits and considered by the Grand Chamber.

Yesterday’s big news was the relevation at the Leveson Inquiry of the e-mails from Frédéric Michel to his NewsCorp colleagues about his contact with Jeremy Hunt, or at least with Jeremy Hunt’s special adviser, while Hunt was preparing to decide whether or not to refer NewsCorp’s bid for BSkyB to the Competition Commission.

To recap, the process was initiated by Vince Cable, who issued a European Intervention Notice in November 2010 under the Enterprise Act 2002, citing concerns about media plurality and requiring the OFT and Ofcom to report. The legislation governing the procedure – article 5 of the Enterprise Act 2002 (protection of Legitimate Interests) order 2003 – required the Secretary of State when deciding whether to refer the matter to the Competition Commission to take account only of the public interest consideration mentioned in the original European Intervention Notice – the plurality of media ownership.

Readers will remember that the responsibility was transferred from Vince Cable to Jeremy Hunt just after Christmas 2010, after Cable was revealed to have made remarks privately that appeared to show he was hostile to NewsCorp, and that were very politically embarrassing – though at the time I wrote that I wasn’t sure it meant he had to withdraw from making the decision, in law. Following the Ofcom and OFT advice, Jeremy Hunt announced he was minded to accept NewsCorp’s undertakings in relation to the deal, and not to refer the matter further to the Competition Commission. There was then a drawn-out process of consultation until in July, following relevations about phone hacking, NewsCorp withdrew its bid.

Turning now to the Michel e-mails written during the relevant period, the first few months of 2011, the key quotes in terms of their public law consequences seem to me to be as follows.

The 10 January e-mail is damning: Jeremy Hunt reportedly

made again a plea to try to find as many legal errors as we can in the Ofcom report

which suggests Hunt more than once cooperated with NewsCorp in an attempt to undermine Ofcom.

In a 23 January 2011 e-mail, Michel reports Hunt as apparently sharing his thoughts strategy with NewsCorp:

He said we would get there at the end and he shared our objectives

This again appears to indicate that Hunt was on NewsCorp’s side.

In a 9 February e-mail, Michel says that Hunt

can’t instruct .. officials to get back to Ofcom as he is not supposed to be aware .. we have received the letter

which taken at face value suggests Hunt knew he was acting improperly.

In a 3 March e-mail Michel says

Decision made .. [Hunt] is minded to accept in lieu and will release around 7.30am to the market

which raises questions about the propriety and possibly even legality, in terms of market abuse legislation, of giving NewsCorp such price-sensitive information.

On the 23 March Michel writes that Jeremy Hunt

would welcome our critical views on the slaughter/may submission to help him forge his arguments

Slaughter and May is a major City law firm – again this suggests Hunt was working with NewsCorp in responding to whatever was in that submission.

Finally on 2 June Michel says Hunt

said he has been .. causing a lot of chaos and moaning from people at DCMS on our behalf

On the basis of these e-mails, in my view it’s clear that Jeremy Hunt’s conduct in this process was biased, in the public law sense. The decisions he actually did make were unlawful because of that bias, and it would have been unlawful for him to go on to make the ultimate ruling on the media plurality issue.

The position in law is clearly worse for Hunt than it was for Vince Cable. Cable’s case was one about pre-determination – the question whether he had closed his mind before making the decision. But politicians are expected to have views on the public interest matters, and it was not clear Cable had truly closed his mind. Had that issue gone before a court, a decision by Cable might well have been defensible.

The issue in Hunt’s case is not pre-determination, but bias. His publicly-known favourable attitude to NewsCorp and to the bid was not a legal problem. What is a problem is that during the process he now appears to have been partial to NewsCorp, to secretly have been on their side, and to have shared information with NewsCorp – specifically advanced information about what he’d say to Parliament – that he ought not to have. He appears to have been in the arena with NewsCorp, rather than acting fairly.

I know Michel has said he never in fact spoke to Jeremy Hunt, and that in fact he only spoke at the relevant times to Hunt’s special adviser. I know Hunt says he knew nothing of this. But firstly, he was responsible for his office’s conduct – any civil servant acts as the alter ego of the Secretary of State, and in no other capacity whatever. If the DCMS Permanent Secretary really approved the special adviser’s contact with NewsCorp, I must say I find that surprising — in the Whitehall sense.

In any event, the e-mails do on their face refer to Hunt himself. Regardless of the truth (yes, you read those words correctly), it appears Hunt was biased. As Hunt himself said in the Commons this lunchtime,

the perception of impartiality is as important as impartiality itself

Strictly speaking the legal question, according to the leading House of Lords case of Magill v Weeks (often referred to as Porter v Magill) is actually (see Lord Hope’s speech at paras. 99-103)

whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the [decision maker] was biased.

Even having heard Jeremy Hunt today, I find it difficult to say there was no real possibility that he was biased, and I doubt any fair-minded observer can do so either. It is not sufficient in terms of public law for Hunt to defend himself as though this were a criminal charge, and as though he had to be proved guilty of something. Criminal law works like that, but public law doesn’t.

Jeremy Hunt has argued in the Commons that he followed all the advice given to him by Ofcom. But that isn’t quite the point. His apparent bias means it was unlawful for him to take decisions in this matter whatever he actually decided. In any event, reading the e-mails as a whole raises the question whether Hunt was attempting to distort Ofcom’s advice to suit his aims, and even succeeded in doing so – so tainting even that independent advice with his bias. Saying he followed the advice when it came is not a good answer to that suspicion.

Finally, a lot of talk about this issue has stressed that Hunt’s decision was “quasi-judicial” in nature. I was surprised that even Robert Jay QC used that term at the Leveson Inquiry yesterday in his questioning of James Murdoch. I wrote about this back in December 2010:

By the way, I don’t think a higher standard applies to Vince Cable because his decision is “quasi-judicial”. Many public lawyers think it’s unhelpful to talk as though there is such a separate broad category of decision short of truly judicial ones, and I agree. The real question is what fairness requires in the context of a particular decision-making process.

But anyway, if there is a such a thing as a quasi-judicial decision, this ain’t it. It doesn’t involve determining a dispute between competing claims, or making findings of fact, or deciding whether to impose sanctions on anyone. It’s more like a classic policy judgment about what the public interest requires in the context of media ownership, of the sort we elect politicians to take precisely because they have views.

In support of my approach, look at Mr Justice Nicol’s judgment in Crosbie v Defence Secretary last year. He said (para. 63):

there is a powerful line of modern authority which has resisted the categorisation of decision-making into judicial or quasi-judicial on the one hand (where the doctrine of apparent bias does apply) from administrative or other public decisions (where it has no application). Ridge v Baldwin [1964] AC 40 gave momentum to this approach. Anderson itself considered it to be too inflexible an approach to seek to characterise the work of the Army Board as ‘judicial’ or ‘administrative’. In R v Secretary of State for the Environment ex parte Kirkstall Valley Campaign Ltd [1996] 3 All ER 304, Sedley J. thought that the principles of apparent bias (at that time expressed by the House of Lords in R v Gough [1993] AC 646) could not be properly confined to judicial or quasi-judicial tribunals but were of general application. His approach appears to have been endorsed by the Court of Appeal in R (Lewis) v Redcar and Cleveland BC [2009] 1 WLR 83 CA.

The point isn’t whether Jeremy Hunt had to act “quasi-judicially”. The point is that he had a duty to act fairly. But he appears to have been very much on NewsCorp’s side, and to have cooperated and colluded with them secretly in steering the decision-making process in NewsCorp’s favour. At the very least he allowed his adviser to do so by a culpable inattention to what was being said and to whom.

There must be, surely, at least a real possibility Jeremy Hunt was biased. That being so, he acted unlawfully in his conduct in this case.

On BBC Radio 4′s Today this morning the Prime Minister was asked about the mix up over Abu Qatada’s arrest, appeal and time limits.

You can listen to the exchange here.

The key extracts from the interview seem to me as follows. The Prime Minister said:

the Home Office was very clear that it had the right date for the deadline expiring on the Monday evening …

… it had checked repeatedly throughout the process, it was working on that basis and also all the case law pointed in that direction, so it was very clear …

… the Home Office was working on the basis of the deadline being the Monday night … something that they had checked with the Court, over the … [did he intend to say "over the period"? - Carl] …

… [in answer to John Humphreys' question "Did they (i.e. the Court) tell you?"]  — Yes, absolutely …

… the Home Office believed, and checked during the process that the date expired on the Monday night …

… they were told throughout that the deadline expired on the Monday night …

… the Home Office was clear about the dates, the precedents were checked …

… the Home Office had checked the precedents, was working on the assumption that the date was the Monday night …

I’m not sure what these precedents are that the PM referred to – if they exist it’d help the Home Office to cite them publicly. Of course as a non-lawyer he may, by “precedents”, simply have meant what had been done or said in the past.

But the main interest here, to me, is that Cameron said the Home Office was working on the basis of the Monday date, was working on the assumption that Monday was right, had checked repeatedly throughout the process and had checked with the Court.

There’s always a risk of interpreting new evidence as confirming one’s own hypotheses, and in this case there’s even more risk of going astray because my hypothesis about this is, and can only be, pure speculation. But I do think everything the PM said today is consistent with my suspicion that the Home Office may well have made these calculations at an early stage in the three-month period and that lawyers (probably Foreign Office lawyers in fact) may well have confirmed their understanding with the Court, but that everyone at that stage – government lawyers and Court staff – may have assumed the question was about when the government had to get its appeal in.

Think about this: Theresa May needed to know her deadline for getting satisfactory agreement from Jordan. A satisfactory agreement would have the effect of changing the factual context of deportation in order to fit the law laid down in the European Court’s judgment, so making ultimate deportation lawful. If that was not achieved by the time limit, May would no doubt continue in her efforts with Jordan, but would probably have wanted also to refer the case to the Grand Chamber. That would have been an attempt to change the legal context to fit the intractable Jordanian facts, and could not be abandoned as an option until those facts changed. I think the government must have been working to this “twin track” strategy.

Given that background, and the vital importance of not missing the date if the Jordanian “track” failed, it’s not surprising Home Office lawyers worked on the basis and worked on the assumption of time running out on Monday April 16. It’s not surprising either, if government lawyers checked with the Court and checked repeatedly throughout the process, that this understanding would be confirmed.

Why would you ask whether there was any argument that you might have another day? Why would Court staff in responding have bothered to muse on the possibility of another day being available? Even had you asked, and even had they expressed some doubt, what point would there have been in passing that doubt on to ministers? The obvious and safe thing to do is to work on the basis of the date being Monday the 16th.

It’s only once the question changed from “when must we get out appeal in?” to “when’s the final point at which it becomes impossible for the other side to argue that an appeal would be in time?” that the ambiguity becomes of practical importance. I doubt that question was every asked by anyone – because they had all been working on a different basis entirely.

That, anyway, is still my speculation. By the way, I’m sure there must have been a joint Home Office-Foreign Office team working on this, because of the European and Jordanian aspects of the project, and as I’ve said, it would have been Foreign Office lawyers who contacted the Court. If anyone’s feeling any heat about this in Whitehall, it’s likely to be Foreign Office lawyers – which might explain why there’s not been a peep of criticism from ministers of the Home Office.

Having listened to Theresa May’s statement today, and followed reporting about the issue of the time-limit, I thought it might help if I set out my reaction to some of the things people have been saying about it, on the airwaves, on the web and in conversation.

First, Theresa May is absolutely right about two things she said in her Commons statement this morning. She said the actual decision on when the time-limit expired for Abu Qatada’s appeal can only be taken by the judges of the European Court of Human Rights themselves. No one’s opinion – not the Home Secretary’s, not Abu Qatada’s, and no lawyer’s – settles the matter. She’s also right that, even if she’s correct, and the appeal is out of time, there’s no automatic mechanism by which the case simply falls away or gets bounced back or “returned to sender” without even being looked at by the judges. If it’s ultimately ruled out of time, that will only happen when the judges consider the admissibility of the referral in the coming days or weeks, and make that decision. Until then, the case remains live.

By the way, it’s important to note that the decision on whether to accept the referral to the Grand Chamber is not simply about the time-limit. Abu Qatada’s lawyers have to succeed in persuading the panel of five judges who’ll consider it that the case is sufficiently important in legal terms – because of the importance or novelty of the legal point of principle involved, for instance – to be accepted. It’s not obvious that their appeal will meet that standard.

Generally, the Court’s practice note on how these Article 43 applications are handled is very helpful. It tells us the reasons why the judges are likely to reject or accept referrals; it tells us they meet about every eight or nine weeks on average; and it tells us the panel of five judges votes if need be on individual cases, if the Court’s legal staff think it merits full consideration. If they don’t, then the case joins a slush pile of cases “without a note” which will probably just be rejected without discussion. I doubt this case will be one of those.

The note also tells us that the panel does not give reasons for its decisions – which means we may never know why the case was rejected, if it is.

I was interested that Theresa May told the Commons that the European Court has a discretion, even if they think a case is out of time, to refer it on in any event. I’m not sure on what basis FCO lawyers are advising that, and haven’t had time to research the point. I’m not sure what in the Convention or rules of court justify that claim. What I do think the Court can do though is effectively ignore the time-limit point, and leave it to be determined together with the merits, if it accepts the referral, or to leave the point hanging if it rejects the referral on other grounds.

One suggestion I’ve heard today is that the European Convention on Calculation of Time Limits may be relevant. Now, this Convention isn’t easy to construe, either. The relevant provision is Article 4.2:

Where a time-limit is expressed in months or in years the dies ad quem shall be the day of the last month or of the last year whose date corresponds to that of the dies a quo or, when there is no corresponding date, the last day of the last month.

After breaking my head on this this afternoon, I think the answer’s to be found in paragraph 27(b) of the explanatory report to the Convention, which makes fairly clear, with examples, that a three-month time limit starting on the 17th January expires at the end of the 17 April. In other words, if this rule applied, it would favour Abu Qatada’s view of the time limit.

The real point about this Convention, though, is that I don’t think it applies at all. It’s true that the preamble refers to the objective of achieving

the unification of rules relating to the calculation of time-limits, both for domestic and international purposes

but Article 1, which actually sets out the legal scope of the Convention, only mentions civil, commercial and administrative matters. I don’t think it can apply to proceedings in public international law before international tribunals like the European Court of Human Rights. If you think about it, that makes sense: while the nations of the Council of Europe can agree to ensure their own legal time-limits comply with the rules, they’re not in control of time-limits in Strasbourg; if the Council of Europe wants to change them, then they need to amend the ECHR itself. This Convention can’t have that effect.

What interested me most about the statement, though, was Theresa May’s refusal to answer questions from David Blunkett and Clive Efford in particular, both of whom wanted to know whether she’d been advised at any point that the time-limit question was subject to some doubt, and whether she’d been advised that she should wait one further day. If we get the answer to those questions, it’ll be clearer whether this incident results from bad legal advice, or bad political judgment.

The BBC reported yesterday that there’s “doubt” about the deportation of Abu Qatada, following his arrest on Tuesday and now his appeal to the European Court of Human Rights – which the Home Secretary Theresa May says is out of time. So: is she right? Is the appeal out of time? How has the Home Office got into this apparent mess? And what if any difference does this appeal make?

The European Court’s judgment in Abu Qatada’s case was dated January 17th 2012. Of that there’s no doubt; and it’s irrelevant whether the government or anyone else was given notice of the judgment before, or received it later.

Article 43.1 of the European Convention on Human Rights says

Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber.

It’s this reference to the Grand Chamber that’s the “appeal” Abu Qatada has now lodged.

Article 44.2(b) says that the judgment becomes final

three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested

If you’re interested in the French text (and you should be – the meaning of the Convention depends on both texts), it says (Article 43.1)

Dans un délai de trois mois à compter de la date de l’arrêt d’une chambre, toute partie à l’affaire peut, dans des cas exceptionnels, demander le renvoi de l’affaire devant la Grande Chambre

and that judgment becomes final (Article 44.2(b)

trois mois après la date de l’arrêt, si le renvoi de l’affaire devant la Grande Chambre n’a pas été demandé

On the face of it, the English texts are ambiguous: it would have been clearer had article 43.1 had said either that reference could be made within three months beginning on and including the date of judgment, or else within three months after that date. You might think the French text is more clearly helpful to the government, since it emphasises that counting begins from the date of judgment – but even that’s not completely clear. Yes, you clearly count from the 17th January; but the legal issue is whether, when you then point to 18th January on the calendar, you mentally count that as day 1 (the clock having notionally started at day zero on the 17th), or day 2 (“judgment day” having been day one).

The first point to make about this ambiguity is that it illustrates the importance of precision in legal texts. People are too often tempted to think that legal exactitude in drafting amounts to mere verbiage. Not so. The second is that it’s a bit surprising that the Convention is unclear – but not amazing. It’s not easy to achieve complete clarity in texts negotiated internationally, as these texts were in Protocol 11 to the ECHR. Whatever the government achieves at Brighton, I expect plenty of argument about what any new Protocol means.

How, then, to resolve this ambiguity? The first principle legally speaking must be to interpret these provisions of Convention in the light of their object and purpose – in accordance with Article 31 of the Vienna Convention on the Law of Treaties. In my view the purpose of the provisions is to give a clear and finite period for “appeal”, and their purpose is best served by reading them firstly, as allowing as clear a period as possible, and secondly, by reading them at the margin favourably to applicants. To me, that argues in favour of seeing applicants as having a full, clear three calendar months in which to apply, i.e. three months after the date of the judgment. Such a period would begin the day after judgment and would last three full months expiring at midnight (which midnight, by the way? Strasbourg midnight, presumably) at the end of Tuesday 17th April. The appeal would be in time, on this reckoning.

Adam Wagner was typically quick and right on Twitter yesterday to draw our attention to the relevant cases: Praha v Czech Republic, and Otto v Germany, neither of which is specifically about this three-month period but rather the six-month time limit for bringing your claim to the ECtHR in the first place. I read both cases as supporting Abu Qatada’s reading, rather than the Home Secretary’s.

In Otto, the Court said

the day on which the final domestic decision is pronounced is not counted in the six-month period referred to in Article 35 § 1 of the Convention. Time starts to run on the date following the date on which the final decision has been pronounced

and in Praha that

the six-month period begins to run on the day after the date on which the final domestic decision was pronounced

both of which support Abu Qatada’s contention that the three-month period began on 18th January – the day after its judgment was pronounced – and so expired at the end of the 17th April.

Adam also drew our attention to the Court’s “General Practice” note on Article 43 applications (page 14):

the period of three months within which referral may be requested runs starts to run on the date of the delivery of the judgment, irrespective of whether the party concerned may have learned of it at a later stage.

That doesn’t really help any further because as in the text of the Convention itself, it’s not clear whether the count starts with “judgment day” as day zero or day one. I think the answer must be found in purposive interpretation, supported by Otto and Praha.

How could the Home Office get mixed up about this, then? Some commentators on the media last night, with the complacent superiority that I know comes naturally to us commentators, expressed disbelief that the government didn’t simply “phone the court”. Things are not as simple as the commentator’s imagination might suggest, though. I’ve no doubt government lawyers were on the phone to Strasbourg more than once.

There may well have been crossed wires here between Foreign Office Lawyers – who deal with the European Court of Human Rights and who formally conduct litigation in it – and Home Office lawyers and civil servants. The prime concern in Whitehall’s mind must have been how long the government itself had to appeal the Abu Qatada judgment, which after all went his way in a practical sense (although a key element of its legal reasoning suited the government, as Theresa May agreed in Parliament on Tuesday). It’s not at all surprising that, if it were asked how long the government had to appeal (and what other purpose could the UK have had to ask?) Court staff should cautiously have cited the 16th of April. If I’d been an FCO lawyer asked to advise when the UK needed to appeal by, I’d have said 16th April, to be safe.

To be fair to government lawyers (of whom I’ve been one), these time issues can be tricky. It often amazes non-lawyers that there can be confusion about questions like this, but one of the surprising things you learn at law school is that it’s not obvious how you calculate time. Indeed, a whole section of the massive and brilliant law encyclopedia Halsbury’s Laws is devoted to the law of time.

In government you have the added difficulty that your ministerial clients seem obsessed with time, and the room it gives to delay decisions, in contexts where giving precise advice on time is difficult. I’ve advised on many EU law cases where the time-limit for a UK response depended in part on complex rules involving additional days allowed to government that varied according to how long the post was assumed to take between Luxembourg and the national capital. It frustrated me enormously that the only legal advice ministers seemed to be interested in was how I calculated the precise date, and that no one seemed anxious to listen to whether I thought we could win, or in getting on with deciding what if any arguments we’d make. A week or two would go by, then at the next meeting the only question would again be: “Till when do we have?”

What I learned was that, in order to focus minds, I had to be precise, cautious and unambiguous about time limits. The worst thing that could happen would be to give a date that turned out to be too late. I also learned in government that it’s best to avoid complexity in your answers, if possible: it’s generally unwanted, and often interpreted as proof that you’re a typical civil service ditherer, whose view can be ignored. That’s why, as I’ve already said, if I’d been advising ministers in a meeting in a context where we ourselves were considering appealing, I’d have given Monday 16th April as the final day for appealing. No other answer would have been so clear and safe, or have commanded confidence. I’d have kept the hidden complexity to myself unless asked for written advice, or unless asked specifically about how long the other side might have to appeal.

What was really needed here was good, old-fashioned lawyers’ advice. Regardless of when the time-limit technically ran out, the government would have been well advised to wait until at least midnight at the end of April 17th before treating the judgment as final. Theresa May’s statement should have taken place after Prime Minister’s Questions yesterday, rather than on Tuesday. But often in modern government, advice in that broad sense seems unwelcome: if they offer it, lawyers can be told sharply that all ministers want is a simple technical answer to a simple technical question such as “how long do we have to appeal”. In this case, especially if as I suspect a government appeal was a live issue, then the only good answer to give was Monday 16th April. I wonder whether this impatient, advice-averse culture and the “garbage in, garbage out” sort of lawyering it can spawn might be partly to blame for the apparent muck-up here.

Finally, some people will wonder why on earth Abu Qatada’s lawyers would have waited till the last moment – and possibly too late – to enter their appeal. Well, first, I’ve already said I think their view of the time-limit is correct. They’re in time, which is all that matters. But there may be a practical explanation for why the application came so late.

It’s worth remembering that Abu Qatada in effect won on 17th January: the European Court of Human Rights decided he couldn’t be deported because of the possible use in Jordan of evidence obtained by torture. It’s not obvious why he’d want to appeal that ruling, or whether they have serious grounds to do so. But what his lawyers certainly want is to find some procedural means of preventing deportation now, if they can. There’s a possibility of a final appeal to the Special Immigration Appeals Commission against deportation – in which case, deportation itself will be suspended pending the outcome. But given that SIAC and the higher UK appeal courts have already ruled his deportation lawful, even before the most recent agreement with Jordan, Abu Qatada must know those proceedings offer him little hope, and may not be drawn out all that long.

He must have hoped that the government – which after all lost on 17th January and has much better grounds on which to contest it – would appeal the ECtHR’s judgment, therefore keeping proceedings in that court alive and enabling him if need be, once deportation action was revived, to ask Strasbourg again for interim measures to temporarily block it. Once it became clear from Theresa May’s Commons statement that the government was not appealing the judgment, but believed it could effect a deportation compliant with it, Abu Qatada’s lawyers finally realised the only way the existing interim measures could be kept in existence or further interim measures applied for would be their own last-minute appeal, however odd that might seem. No doubt the papers had already been prepared in advance – his lawyers are certainly a capable lot – and so were ready to be sent to the court on the day or his arrest, after a few final hours work.

Oddly what was forgotten in yesterday’s media flurry about “confusion” and “doubt” was that this appeal makes little real difference, in the scheme of things. Theresa May told the Commons on Tuesday that she expected deportation could take “many months” because of appeals – this just proves her right. And deciding not to arrest Qatada till Wednesday would not actually have prevented an appeal being made on Tuesday.

I don’t think there’s any question of Tuesday’s arrest being unlawful, by the way. What the interim measures prevent is deportation itself, rather than arrest or detention with a view to deportation.

I expect Abu Qatada to land in Jordan eventually; but not before Julian Assange lands in Sweden.

The United States Supreme Court is currently hearing Department of Health and Human Services v Florida, in which President Obama’s Health Secretary Kathleen Sebelius is appealing the decision of a Federal Court of Appeals that the Patient Protection and Affordable Care Act – Obama’s healthcare reform legislation, and his major achievement in domestic social policy – is in breach of the Constitution.

The core element of the legislation is the “individual mandate” provision in the Act, which requires individuals to obtain a minimum amount of health insurance, if not already covered by an employer’s or publicly-funded scheme. Arguments about that were heard yesterday; other constitutional questions relating to the Act were heard on Monday and will be heard today.

The particular constitutional provision the individual mandate is said to breach is Article 1, section 8 which sets the limits of Congress’s power to legislate:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states …

….    –And

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

The federal government’s argument is that Congress had power to enact this legislation under three parts of the edited text I’ve just cited: the “tax and spend” clause (the first paragraph above), because the individual mandate is enforced by means of a tax penalty; the “commerce clause” which gives power to regulate inter-state trade, since the Act is classic economic regulation of a national market; and the “necessary and proper” clause at the end of my edited quote, since it’s a reasonable means of achieving Congress’s reasonable policy aim.

The states argue that the individual mandate is not a tax, that the Constitution permits Congress only to regulate commerce, not to compel anyone to enter into commerce by buying a service, and that the “necessary and proper” clause does not apply since the individual mandate does not fall within “the foregoing powers” of Congress set out in section 8.

The various briefs of the parties can be downloaded here; I’ve uploaded the federal government’s and the state respondents’ briefs on the individual mandate for you to read here.

ABC news live blogged yesterday’s proceedings and has provided audio of yesterday’s arguments, and a transcript. You can read their full coverage of the case here, and excellent NPR coverage here. There’s also terrific coverage at the SCOTUS blog, the Volokh Conspiracy, Concurring Opinions and the Constitutional Law Profs Blog.

This case seems, and is, extraordinary from a British perspective. Partly that’s because we routinely misunderstand American politics, forgetting the importance of Congress and its fundamentally limited power compared to our own omnipotent Parliament, and almost always neglecting the power of the states and the balance the Constitution holds between them and Washington. For instance, my natural reading of the “tax and spend” clause was to see it not as limited to taxing and spending at all but as saying

The Congress shall have power to … provide for the … general welfare of the United States

That, though, is a reading arguably at odds with the entire limited-government, federal nature of the US Constitution. Cornell University’s excellent annotated Constitution puts me in my limey place, making clear that, although the point has been argued occasionally (phew!), the “general welfare” clause is generally read not as a free-standing power but as a qualification of the power to tax; in other words, it means

The Congress shall have power to lay and collect taxes … to … provide for the … general welfare of the United States

More legitimately, it seems extraordinary viewed from here that legislation promised by President Obama before he was elected, which he was voted in to deliver, and which was approved by both Houses of Congress, might seriously be struck down by judges – which is what Florida and the other respondent states are in effect asking it to do. I’m a great admirer of the United States and its constitution – it’s perhaps the most successful legal instrument ever designed by men. But the American way of constitutionalism seems, here, at odds with democracy. From a British point of view, it seems obvious that the government “of the people, by the people, for the people” of which Americans are rightly proud should mean that the people’s will is law.

But of course this is because, as Dicey argued long ago, we’re used to a sovereign Parliament which can enact legislation without judicial comeback. I know EU law is supreme, and that to a lesser extent Acts of Parliament are measured against human rights laws, but those are limited constraints from which Parliament if it wishes can free itself. They’re very different from the more rigid constraints on Congress.

So this case should serve as a warning to us from across the Atlantic. In particular, it’s a warning to those of us in Britain who count ourselves as on the social democratic side of politics and who believe the state can actively do good. Some people argue for a written constitution here, or for elements of a written constitution, such as a British version of the First Amendment. But any such move would inevitably give conservative forces greater power to block, by litigation, socially progressive legislation. Anyone who counts themselves liberal should pause to think how relatively easy it has been for Parliament to bring in civil partnerships, and will be for it to bring in gay marriage, as compared with the agonies the issue causes in America.

We should resist the siren call of the written constitutionists – and preserve, protect and defend our existing constitution, to adapt words from another context.

On Thursday night the BBC screened Rights Gone Wrong? presented by Andrew Neil and produced by Matthew Laza. I’m glad my mum reminded me to see it.

The human rights debate in this country seems to have got unfortunately bogged down into a dispute between some, mainly on the right, who think the European Convention on Human Rights and the Human Rights Act are the root of more or less all evil; and those who think everything that has flowed from both is unalloyedly good. The truth and most people’s views are more complex, and I think this programme explored the issues pretty well.

It considered things very much from a human angle, and didn’t set out to investigate legal detail, but while appealing to a broad audience took far from the worst sort of populist approach. What struck me was how relatively unpolarised the discussion was compared to many treatments of this subject. It identified some genuine concerns and challenges arising from human rights judgments, and the difficulties facing those who’d like to change our human rights laws.

Rosalind English at the UK Human Rights Blog is fairly positive about the programme, as is James Walton at the Telegraph who calls it “level headed” – a fair characterisation in my view. Charon QC, while suggesting “there were faults in the analysis and scope”, urges you to see it. I recommend it too. I was pleased to see the BBC show a very accessible but non-simplistic hour on this important subject. The only shame is that it was shown on BBC2 rather than BBC1.

You can watch Rights Gone Wrong? for another few days.

By convention, the Queen grants Royal assent to legislation passed by the Lords and Commons. It’s only a constitutional convention that she does so: in other words, she does so because she herself, ministers, MPs and the public regard it as her constitutional obligation to do so. But as a matter of strict constitutional law, she is fully entitled to refuse or withhold her assent. If she did so, the Bill in question would remain an unenacted Bill, and would not become law.

But the last time Royal assent was withheld was by Queen Anne in 1707. It’s obvious that in a democratic society with a constitutional monarch, public lawmaking should not be subject to the will of one unelected person, however grand.

At least, that principle should normally hold. The convention need not be followed if in all conscience the Queen felt it did not bind her in an individual case. At first blush, that might seem to be an atavistic oddity, a strange remnant of the pre-democratic era. But the fact that grant of Royal assent is a matter merely of convention is actually a very useful constitutional arrangement. It gives politicians complete confidence that their legislation will become law – so long as they behave normally. But it also creates an area of uncertainty for them the moment they consider testing the boundaries of democracy and the rule of law.

So: when might it be constitutionally appropriate for the Queen to exercise her undoubted legal power to withhold Royal assent, and in effect veto Parliament’s legislation? I’d say (and I think most constitutional lawyers would agree) that this can only be contemplated where Parliament is attempting to change some democratic fundamental, for instance abolishing general elections, or postponing the next election for, say, five or ten years.

This is indeed one of the examples considered by Rodney Brazier in his excellent book Constitutional Practice which is my go-to reference on tricky constitutional issues (3rd edition, Oxford University Press, page 194):

If a government were to procure the passage of a Bill to prolong the maximum life of Parliament for no proper reason the Queen would certainly be acting as the ultimate guardian of the constitution if she were to veto the Bill.

He goes on to argue that she’d be better advised in most circumstances to dissolve Parliament instead, so that the electorate could decide whether to back the government’s plan.

My point is this: to invoke the possibility that the Queen should withhold Royal assent is not a trivial thing. To go further, and publicly call on her to do so, is effectively to claim we’re in constitutional crisis, and that extreme measures are needed to protect democracy.

Yet a number of organisations say they’ve petitioned the Queen asking her to withhold assent to the Health and Social Care Bill. Apparently they include the NHS Consultants’ Association, the National Pensioners’ Convention, the NHS Support Federation and Keep Our NHS Public.

I’m a strong supporter of the NHS and of the principle that it should be free at the point of use. I’m not a supporter of the coalition government, and have no particular reason to want this Bill passed. But the point is not, and should not be, whether we approve of the Bill or not. However strongly anyone opposes this Bill, it does not put democracy, human rights or the rule of law at stake. To toy with the constitution as part of a campaign like this is a fundamentally unserious act. It’s an insult to democracy and risks bringing the constitution – a much sounder set of arrangements than is often supposed – into disrepute.

It’s worth noting, by the way, that the petitioners haven’t even published their letter to the Queen, citing royal protocol. This takes the biscuit, making this silly petition sillier still. These organisations have not only tried to take our constitution back three hundred years: they’ve done so with an element of secrecy.

I realise it can be argued with some justice that the Health and Social Care Bill itself is not free of constitutional vice. As Lord Owen said in a statement on 9 March, when the government was ordered by the Information Rights Tribunal to publish its own transitional risk register associated with the Bill,

Surely now Liberal Democrat Peers, with a long and proud history of supporting freedom of information, will not go along with any attempt by the Coalition Government to continue with the Third Reading of this Bill in the light of today’s Information Rights Tribunal on the NHS Transition Risk Register.  If the Government insist on appealing to the High Court then they must accept that the Bill is paused until that judgement has been made ..

.. To go ahead with legislation, while appealing to the High Court, would be the third constitutional outrage associated with this legislation.  The first was to legislate within months of the Prime Minister promising in the General Election that there would be no top-down reorganisation of the NHS. The second was to implement large parts of the legislation without Parliamentary authority.

But these matters to not go to the root of democracy, nor does Lord Owen claim they do. He has adopted the more normal and appropriate tactic of tabling an amendment in the Lords.

My problem with the petition isn’t just a matter of constitutional pomposity – I’m concerned about the nature and level of our political debate. Testing the constitution to the limits for partisan purposes is the sort of thing the American populist right goes in for, and there it leads to political gridlock, brinkmanship over critical issues of public finance and deepening cynicism about the political process. I don’t want political debate here to become as coarse, as bar-room lawyerish and as cynical as that – but that’s where this sort of move could drag us if petitions become a more routine part of political squabbling and the Queen becomes selectively politicised. That this tactic – calling upon the unelected monarch to quash Parliament’s will – comes in this case from people who might claim to be on the left – that’s staggering and shameful.

It won’t succeed of course – which is yet another reason to oppose it. The constitutional convention applies, there’s no chance of Royal assent being withheld, and so all the petition amounts to is a stunt.

The organisations that have done this should ashamed, and should apologise for this pointless constitutional abuse. They’d do much better to support Lord Owen’s amendment.

Yesterday I explained the facts and legal background to this case, and a short account of the first day of the hearing, which concluded just after 1 pm today. I was again in court to hear Jason Coppel complete his submissions for HMRC, and Richard Drabble briefly respond.

Jason Coppel began by stressing how little evidence there was that men are actually much more likely to be disadvantaged by the “one parent, main responsibility”  approach to payment of child tax credit embodied in the Tax Credits Act 2002, section 8 and the Child Tax Credit Regulations 2002, regulation 3. This seemed to be an attempt to resile from HMRC’s concession that the regime is indirectly discriminatory against men, and Lord Wilson picked Coppel up on that – his response was that his point was not about the existence of discrimination but about how fully it needs to be justified in the context of this evidence. I’m not sure this apparent to go behind what’s already been admitted helped HMRC, and indeed this morning saw a less commanding performance from Jason Coppel, whose submissions on the test for justification yesterday had been so impressive.

The most remarkable incident in the hearing was Lord Wilson’s impromptu judicial rant about Margaret Thatcher and the origins of the Child Support Act 1991. Lord Clarke had been exploring whether a family court could in some way make an order offsetting unequal entitlement to CTC – but Lady Hale explained that family courts can no longer order periodical payments for the benefit of children on divorce. This led Lord Wilson to ask, rhetorically, whether it was not true that Margaret Thatcher had come back from a visit to Australia in the last year of her premiership utterly convinced or the merits, including the merit of saving legal aid money, of having all consideration of financial support for children handled by a computer. This, he said, was the cause of what he called

the barrenness of the position of the family courts.

Lord Wilson never lost his composure during this intervention, but his less than positive view of this aspect of child support law was obvious to everyone in court.

Jason Coppel tried to argue that a court could take receipt of CTC into account in ancillary relief proceedings on divorce, but neither Lady Hale nor Lord Wilson was having that: they agreed that most financial orders on divorce are one-off, irreversible capital orders, and that it would be unreal to think receipt of CTC at the moment of divorce could have any influence over their content. This was a bad point for HMRC to make.

Jason Coppel was back on firmer ground when he turned to justifying the current CTC regime. He reminded the Justices that requiring CTC sharing in future would not be cost free, but would deny income to majority carers who might need it to buy important items for their children. It was not sensible to try to create a special sharing right only for minority carers in receipt of subsistence benefits like Mr Humphreys, since first, that would undermine the purpose of CTC – which was to deliver means-tested support regardless of parents’ work status – and would make the majority carer’s entitlement arbitrarily and unpredictably dependent on the working circumstances of their former partner.

Coppel relied on HMRC research showing that of 30 European countries, only 6 split their equivalents of CTC (Richard Drabble quibbled, later, with the reliability of the comparisons HMRC was making) and argued that in the current state of Strasbourg case law, the Court should be slow to interfere with ministers’ policy choice. He relied on Lord Bingham’s principle in Ullah v Special Adjudicator, that (see paragraph 20)

The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less

(which Lord Wilson called “an odd principle”), and cited Lady Hale in Clift v Home Secretary, at paragraph 63:

it is not for us to declare legislation which Parliament has passed incompatible with the Convention rights unless the Convention and its case law require us so to do.

Coppel argued that the Hockenjos case, so central to Mr. Humphreys’ argument, was wrongly decided for a number of reasons. Most interesting was that in his view Lord Justice Scott Baker had seen justification as involving a subjective element – in other words, what mattered was at least in part what thought government had given to justifying the policy at time they made it. That, Coppel argued, was wrong: what mattered was whether objectively, at the time a policy is challenged, the government can advance good policy reasons to justify it. He relied on R (Begum) v Denbigh High School in support of that proposition. Justification can he said be post hoc as long as it’s sound.

I think that point goes too far. I absolutely agree that justification is an objective exercise: what matters is the actual social justification of a policy, not what went through the minds of the policymakers at the time. I think post hoc attempts to use policy arguments that are clearly nothing to do with the policy-maker’s real aims are likely to run into difficulty, though.

We didn’t get much more clarity on potential remedies if Mr Humphreys wins: Jason Coppel argued, I thought very surprisingly, that this was an appropriate case for a ruling with prospective effect – in other words, deciding what the law means, but only allowing people to rely on that meaning in courts in the future. This is something domestic courts have never done but which was left open as an option one day by the House of Lords in NatWest v Spectrum, Lord Nicholls saying at para. 41

“Never say never” is a wise judicial precept

I think this Spectrum submission needed to be developed in much more detail than it was, though: it is not clear whether a prospective ruling on the interpretation of secondary legislation in a human rights context really is the same thing as the Lords were contemplating in Spectrum. Richard Drabble I think killed off this suggestion by saying it’s not appropriate in a statutory appeal, where Mr Humphrey’s statutory rights at the time of his CTC claim must be resolved. Lord Reed, nodding, seemed very much to agree with that. Again, I think this Spectrum point was an odd, and bad, one for HMRC to raise. They should really have been arguing that the difficulty in identifying a remedy testified to the lack of cogency of Mr Humphreys’ human rights argument.

Richard Drabble’s final point was to stress that what’s at stake is something very practical: who buys the tea and breakfast when the children are staying with a substantial minority carer? That seemed to me a fairly ineffective point, given that Lady Hale had several times stressed that whether CTC actually was spent on children was

the big “if”.

This was a less impressive day for HMRC, and if the justification point goes against them I’m sure their idea of a prospective remedy will get nowhere (of course its potential appeal to them is that it would avoid the cost of back claims relating to unpaid CTC in the past).

I think judgment in this case will be for HMRC, though, dismissing Mr Humphreys’ appeal and upholding the Court of Appeal’s ruling. I think the Justices are likely to conclude that HMRC is right about the test for justification and that in the social context, a “bright lines” approach to awarding child tax credit, even if it leads to some distributive unfairness at the margins, is justified.