Abu Qatada: David Cameron on Today

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.