9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) way matters proceeded left no room for improvement. Equally, Mr Gill's criticisms before us are entirely overblown. There is no substance in the suggestion that either of his clients suffered any real injustice, such as might require this court to remit their cases to SIAC for further consideration, arising out of the procedures for disclosure that were adopted. 280. As for the rigour with which relevant investigations were or were not pursued, I see nothing in paragraph 51 of SIAC's open generic determination with which to disagree. And in the security context it must be especially difficult for this court to form a responsible and objective view as to what should or should not have been done in the pursuit of any given or prospective lines of enquiry. CONCLUSION 281. For the reasons I have given I would dismiss these appeals. 282. I end where I began. This case has concerned the means by which, in the acute setting created by the threat to the life of the nation which currently faces the United Kingdom, the State has sought to reconcile competing constitutional fundamentals. I do not say it has been done perfectly, or could not have been done better. But I do not think the executive or the legislature has at all lost sight of those constitutional principles which it is the court's special duty to protect: the rule of law, and the avoidance of arbitrary power. Lord Justice Neuberger: Introduction 283. The Anti-Terrorism, Crime and Security Act 2001 ("the 2001 Act") gives the Secretary of State for the Home Department the power to detain a person in custody in circumstances where there is insufficient evidence to mount a prosecution against him for any imprisonable offence. This is a draconian power which, save in the most exceptional circumstances, is fundamentally inconsistent with the role of government in a democratic society. However, the legislature gave such a power to the Secretary of State, because of another fundamental role of government in a democratic society, namely the duty to ensure the safety and well-being of its citizens. 284. The 2001 Act has as its genesis the attacks which took place in the United States on 11th September 2001. Those attacks, no doubt together with other available evidence, led the legislature to conclude that the interests of national security required the Secretary of State to be given the power to detain any person `without a right of abode in this country, whom he believes to threaten national security and suspects of being a terrorist. While the Secretary of State is given such powers, the legislature has, very properly, ensured that persons detained under the 2001 Act, should be entitled to have recourse to a tribunal to challenge their detention. 285. Although it will be necessary to look at the provisions of Part 4 of the 2001 Act in more detail, the general scheme is as follows. Under s21, the Secretary of State can issue a certificate in respect of a non-national whom he suspects of being a terrorist and believes to be a risk to national security. Such a certificate results in that person being detained, unless and until he can find another country to which to travel. Such a person is given a right of appeal under s25 of the Act to the Special Immigration Appeals Commission ("SIAC"), from which there is a right of appeal on a point of law to the Court of Appeal. Part 4 of the 2001 Act requires periodic reviews of any such detention, and it also provides for its own ultimate determination, in November 2006 at the latest. 286. Since Part 4 of the 2001 Act came into force in November 2001, the Secretary of State has apparently ordered the detention of a total of 16 individuals pursuant to its provisions. The present appeals are brought by ten of those individuals, in respect of whom there were linked hearings before SIAC. Those hearings were complex for a number of reasons. First, there were ten separate appeals, which raised a number of similar points, but each of which, inevitably, depended on its own particular facts. Secondly, a number of points of principle and practice had to be determined by SIAC during the course of the hearings. Thirdly, some of the evidence upon which the Secretary of State relied had to be given in closed session, and was so sensitive that it could not be vouchsafed to the appellants. Accordingly, Special Advocates were appointed to represent them in connection with this evidence, pursuant to http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 72/113