9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) 6. Article 6 need not be set out in full. The first sentence provides: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." It has been held in this court that proceedings before the Commission are not criminal proceedings for the purposes of Article 6. The result is that Article 6 (2) and (3) do not apply (A & Ors v Secretary of State for the Home Department [2004] QB 335 per Lord Woolf CJ at p364A). 7. The effect of Sections 1 and 6 (1) of the Human Rights Act 1998 ("the 1998 Act") is that it is unlawful for a court to act in a way which is incompatible with the Convention rights set out in the above Articles unless section 6(2) applies. That provides: "(2) Subsection (1) does not apply to an act if – (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions." 8. Article 15 permits derogation from obligations under the Convention in limited circumstances: "1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligation under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law." By virtue of Article 15 (2) no derogation is permissible from several articles, including Article 3. 9. Following terrorist attacks in the United States on 11 September 2001 the United Kingdom government formed the view that a public emergency, within the meaning of Article 15 (1) of the Convention, existed in the United Kingdom. A proposed derogation from Article 5 (1) of the Convention was notified to the Secretary General of the Council of Europe under Article 15 (3) of the Convention. The Human Rights Act 1998 (Designated Derogation) Order 2001 ("the 2001 Order") was made on 11 November 2001, having been approved by both Houses of Parliament. Section 14(6) of the 1998 Act permits the making of such a derogation order. 10. The 2001 Order provides, in Article 2: "The proposed derogation by the United Kingdom from Article 5(1) of the Convention, set out in the Schedule to this Order, is hereby designated for the purposes of the 1998 Act in anticipation of the making by the United Kingdom of the proposed derogation". 11. The Schedule to the 2001 Order refers to the terrorist acts in the United States on 11 September 2001 and the resolutions of the United Nations Security Council recognising the attacks as a threat to international peace and security. It states that the threat from international terrorism is a continuing one and that the Security Council in its resolution 1373 (2001) "required all states to take measures to prevent the commission of terrorist attacks, including by denying safe haven for those who finance, plan, support or commit terrorist attacks". The Schedule continues: "There exists a terrorist threat to the United Kingdom from persons suspected of involvement in international terrorism. In particular, there are foreign nationals present in the United Kingdom who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism, of being members of organisations or groups which are so concerned or of having links with members of such http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 3/113

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