9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) 475. The appellants developed a further argument, albeit that it was somewhat unclear whether it was intended to be a free-standing argument, or an argument bolstering their case based on the common law and/or ECHR Article 6(1). The argument is to this effect. The derogation effected by the Derogation Order must, in order to be valid, not be "inconsistent with [the UK's] other obligations under international law": see the closing words of ECHR Article 15(1). Therefore, if SIAC can rely on evidence obtained by torture, that means that the UK is in breach of its obligations under Article 15 of CAT, and consequently in breach of one of its obligations "under international law". Accordingly, unless SIAC is somehow precluded from relying on evidence obtained by torture, the derogation effected by the Derogation Order must be ineffective, and consequently the provisions of the 2001 Act is incompatible with ECHR Article 5(1)(f). 476. This argument was initially advanced on the basis that it was a reason for concluding that evidence obtained by torture could not be presented to, or relied on by, SIAC, by virtue of ECHR Article 6(1), or even under the common law. However, it seems to me that that cannot be the right analysis. Neither the contents of the common law nor the meaning of ECHR Article 6(1) can depend on the terms or effect of a purported derogation by the UK government under ECHR Article 15, nor by the provisions or effect of a UK statute. To my mind, if the appellants' argument is correct in principle, then, in light of s3 of the 1998 Act, this court should first attempt to construe the 2001 Act and/or the SIAC rules in such a way as precludes SIAC from entertaining evidence obtained by torture, or (by necessary inference) it must conclude that the 2001 Act is, to this extent, incompatible with ECHR, which would present an obvious difficulty, because, even now, the appellants do not seek a declaration of incompatibility. 477. If the appellants' point is a good one, it seems to me that it can be solved in this way. SIAC, as an organ of the UK government for this purpose, is obliged to comply with ECHR if it is possible for it to do so. If it admits and relies on evidence obtained by torture in order to uphold a certificate against a particular appellant, then that would put the UK, in breach of ECHR Article 5(1)(f), because, if the argument of the appellants is correct, the derogation would be ineffective. 478. If the argument is right, then one must look to see whether there is anything in a statute or statutory instrument which can be said to require SIAC to admit evidence obtained by torture. In my view, there is no such requirement in the 2001 Act, or in the 2003 Rules. The only possible relevant provision to which our attention was drawn was Rule 44 of the 2003 Rules, and I do not see how it can be said that that can be construed as requiring SIAC to admit evidence obtained by torture. It merely disapplies the normal rules of evidence. However, if, by admitting evidence obtained by torture, SIAC would inevitably put the UK government in breach of the appellants' rights under ECHR, it seems to me to follow that it is not merely a rule of evidence, but a fundamental point of principle, that SIAC should not admit evidence obtained by torture. 479. The central question, therefore, appears to me to be whether the derogation would be ineffective if SIAC were to admit and rely on evidence obtained by torture. The first point made on behalf of the Secretary of State is that it is not open to this court to question the validity of the derogation. This point is based on the contention that, as ECHR Article 15 is not a Convention right under Schedule 1 to the 1998 Act, ie it has not been incorporated into English law, this court cannot inquire as to whether its provisions have been complied with. 480. In resolving that argument, an English court's starting point must, I think, be the 1998 Act. The effect of s1(1) and (2) of that Act is that ECHR Articles 2-12 and 14 "have effect … subject to any designated derogation …". The question, as I see it, is therefore whether a derogation contained in a statutory instrument, which is susceptible of being held to be unlawful under the terms of ECHR Article 15(1), which is not an Article referred to the 1998 Act, is, nonetheless, a "designated derogation". If it is, then an English court must give effect to it. In this connection, s14(1) defines such a designated derogation as: "any derogation by the United Kingdom from an Article … which is designated for the purposes of this Act in an order made by the Secretary of State." http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 102/113