9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) 212. The argument has been put in various ways, in this court and below. I do not consider it necessary to take time with any other formulations, save to note that it was as I understood him an emphatic theme of Mr Gill's submissions that a person could not lawfully be certified save on suspicion of a direct link with Al Qa'eda or associated groups actively pursuing Al Qa'eda's aims. 213. On this part of the case I think it important first to get clear what is the true issue. We are not in these proceedings concerned with the distinct question whether the provisions made by Part IV of ATCSA lie within the terms of the derogation under ECHR Article 15. Domestic law indeed allows such a question to be tested, by means of a challenge to the Derogation Order. Such a challenge was brought, first to SIAC and thence on appeal to this court, in A, X, Y & ors to which I have referred earlier in passing. The procedure for the challenge deployed in that case consisted in an application for an order to quash the Derogation Order and a declaration under HRA s.4 that ATCSA s.23 was incompatible with ECHR Articles 5 and 14. The specific point being made was that s.23 permitted the detention of suspected international terrorists "in a way that discriminates against them on the ground of nationality": the provision as enacted could only be deployed against persons who were not British nationals. SIAC acceded to the challenge. Its decision was reversed in this court. 214. In these appeals the argument is not the same. It is to the effect that, given the terms of the derogation, SIAC has interpreted ATCSA s.21 so as to accord a breadth to the expression "international terrorist group" which is wider than the derogation contemplated. Properly understood this argument can in my judgment only go to the correct construction of the statute. 215. In substance the argument depends in considerable measure on the court's acceptance in A, X, Y of what was said by the Attorney General as to the government's position on the derogation's scope. Now, it is plain that the powers of ATCSA Part IV are not on their face limited so as only to justify action taken in response to threats to the United Kingdom emanating from Al Qa'eda. The statute makes no reference, express or implied, to any such threats. That was recognised by the court in A, X, Y. Lord Woolf CJ accepted at paragraph 42 that Part IV on its face is "over-inclusive". He went on to state in the same paragraph: "Lord Goldsmith [the AG] gave the Commission on behalf of the government an undertaking that Part 4 would only be used for the emergency which was the subject of the derogation." Brooke LJ stated at paragraph 98: "I agree with Lord Woolf CJ that the Secretary of State may not lawfully issue a certificate under section 21 unless he is empowered to do so under the terms of the derogation. This refers in terms to the threat to international peace and security identified by the terrorist attacks on 11 September. In other words it identifies the threat posed by Al Qa'eda and its associated networks (and no one else)…" Lastly, Chadwick LJ stated at paragraph 149: "I agree that, on the language of section 21(1) of the 2001 Act, the power to certify does go beyond what can be regarded as strictly required by the exigencies of the situation. But, as Lord Woolf CJ has pointed out…, that is a point of no substance. It is plain that the power to certify can only be exercised in relation to the emergency which gave rise to the Derogation Order. That the Secretary of State recognises that limitation was confirmed by the Attorney General in the course of the hearing." 216. Though it is not strictly germane to Mr Gill's argument, I am driven to say that I would view with considerable unease a state of affairs in which the scope and application of legislation depended upon what a minister of the Crown, here the Attorney General, said was its scope or application. Not because the Attorney's word is questionable; I hope it goes without saying that it is entirely unquestionable. The reason is quite different, and in our developed law must be elementary. It is that the objective state of the law, and the claims or concessions of executive government, are never to be confused. But with great respect I do not consider that this court in A, X, Y based its reasoning on any such claims or concessions pure and simple. The Derogation Order and the Attorney's statement to the http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 52/113