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.