9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) 164. Article 15 ECHR provides: "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 obligations 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. 2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision. 3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary-General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary-General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed." 165. The Derogation Order was made on 11 November 2001, and came into force on 13 November 2001. Article 2 stated: "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 [sc. the HRA] in anticipation of the making by the United Kingdom of the proposed derogation." The Schedule refers to the events of 11 September 2001, and describes the terrorist threat to the United Kingdom in paragraphs which I have already set out. It provides a summary of the material provisions of ATCSA, beginning thus: "As a result of the public emergency, provision is made in [ATCSA], inter alia, for an extended power to arrest and detain a foreign national which will apply where it is intended to remove or deport the person from the United Kingdom but where removal or deportation is not for the time being possible, with the consequence that the detention would be unlawful under existing domestic law powers." Later, this is stated: "It is well established that Article 5(1)(f) permits the detention of a person with a view to deportation only in circumstances where 'action is being taken with a view to deportation' (Chahal v United Kingdom (1996) 23 EHRR 413 at paragraph 112)." Finally this, under the heading Derogation under Article 15 of the Convention: "The Government has considered whether the exercise of the extended power to detain contained in [ATCSA] may be inconsistent with the obligations under Article 5(1) of the Convention. As indicated above, there may be cases where, notwithstanding a continuing intention to remove or deport a person who is being detained, it is not possible to say that 'action is being taken with a view to deportation' within the meaning of Article 5(1)(f) as interpreted by the Court in the Chahal case. To the extent, therefore, that the exercise of the extended power may be inconsistent with the United Kingdom's obligations under Article 5(1), the Government has decided to avail itself of the right of derogation conferred by Article 15(1) of the Convention and will continue to do so until further notice." The derogation was effected on the international plane, as I understand it by the communication of a note verbale to the Council of Europe through the appropriate diplomatic channels. THE LEGISLATION 166. S.21 of ATCSA provides: http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 34/113