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