9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) derogated from other Articles or sub-Articles of ECHR, for the purpose of considering the lawfulness of the derogation under ECHR Article 15. That cannot be right. 487. It is necessary, as I see it, to inquire into the nature of the powers which the derogating government is seeking to exercise in order to decide whether the requirements of ECHR Article 15(1) are satisfied. I accept that one must look at the provisions of Part 4 of the 2001 Act as a whole in order to decide what it is that the UK government is enacting in connection with, or even as a result of, its purported derogation. However, I do not consider that a challenge to the validity of a derogation under ECHR Article 15(1) can properly involve an inquiry as to whether every possible step permitted or required to be taken as a result of, in connection with, or even as part of, the overall statutory scheme of the act involving a derogation can be the legitimate subject of an inquiry to see whether one of those steps happens, in a certain respect, to involve a breach of one of the UK's many international treaty obligations. 488. The result of such a construction would, to my mind, be little short of absurd. Virtually every measure involving a derogation under ECHR Article 15 will involve depriving some individuals of one or more of what would normally be their ECHR rights. Unless the right actually removed is a right to a hearing in some shape or form, any such country could normally be expected to give the individual from whom the right is removed an opportunity to challenge the relevant executive decision against him in a court. That would normally be expressed, although it could be implied, in the relevant measure enacted by the legislature of the relevant state. If the appellants' argument is right, it would mean that, in almost every case of a purported derogation, the ECtHR would be entitled to consider virtually the whole of the civil or criminal procedure rules and practice of the courts of the state concerned, with a view to seeing whether there was anything in those rules that breached any international treaty to which the state concerned was a party. That is merely one result, albeit a relevant and rather stark result, of the construction of Article 15(1) advanced by the appellants. For my part, I cannot accept it. 489. Having said that, I would accept that it is difficult, probably impossible, to define quite how far one can go when considering the extent of a particular measure which involves derogation under ECHR Article 15, in order to see whether it complies with the relevant state's international treaty obligations. However, in the present instance, I would accept that it would probably be open to a court considering the validity of the derogation to consider any specifically prescribed variations from the normal procedures of courts and tribunals adopted under the 2003 Rules as this court did, albeit in the context of ECHR Article 6(1) in A -v- Secretary of State. 490. I do not consider that the relaxation of the ordinary rules of evidence by virtue of Rule 44(3) assists the appellants' case. If the normal principles of English law do not exclude from evidence statements obtained by torture, then the appellants' case based on derogation would ultimately rely on contending that the normal principles of English law infringed Article 15 of CAT, not that the special procedure adopted under, or in connection with, Part 4 of the 2001 Act had a special provision which infringed Article 15 of CAT and was an exception to the normal rules of admissibility in English courts. 491. In these circumstances, I do not accept the appellants' contention that the fact that the provisions of the 2001 Act required the UK government to effect a derogation pursuant to ECHR Article 15(1) would be of assistance in determining whether or not SIAC is entitled to rely on evidence obtained by torture. Admissibility of statements obtained under torture in principle: conclusion 492. In these circumstances, I am of the view that, while the arguments based on the common law and the Derogation Order are not of assistance to the appellants on the issue of admissibility, they are nonetheless correct in their contention that a statement made under torture cannot be put before SIAC on a s25 appeal, or taken into account by SIAC when determining a s25 appeal, because it would otherwise represent an infringement of ECHR Article 6(1). It appears to me that an appellant in a s25 appeal, against whom a statement obtained by torture is used in evidence, and relied on in rejecting his appeal has not had a fair trial, within the meaning of ECHR Article 6(1). 493. I should mention two arguments which were raised on behalf of the Secretary of State to call this conclusion into question. The first argument is that the exceptional risk posed by Al-Qa'eda, and the difficulty of obtaining evidence against people connected with it, may justify putting before SIAC http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 104/113