9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) imminent threat to national security from terrorist activity connected with Al-Qa'eda, to justify taking the drastic step of passing Part 4 of the 2001 Act and derogating from ECHR to the extent (and indeed for the reasons) identified in the Derogation Order. 333. The inevitable tension, indeed conflict, between two fundamental rights, the right of every individual not to be detained by the UK government without due process, and the right of every individual to expect the government to protect the security of the realm, must inform the consideration of all arguments concerning the construction and application of the 2001 Act. 334. Secondly, as I have already mentioned, this is not the first time that the Court of Appeal has had to consider Part 4 the 2001 Act. In A -v- Secretary of State the Court of Appeal held that the derogation effected by the Derogation Order did not infringe ECHR Article 14 (reversing SIAC on that issue). The Court of Appeal also held that, at least on the arguments raised in that case, proceedings before SIAC and detention adopted by the 2001 Act did not contravene ECHR. That decision is under appeal to the House of Lords. 335. In paragraph 44 of his judgment, Lord Woolf referred to "the deference which should be extended to the executive on matters of national security", - as to which see also the fuller comments of Lord Hoffmann in Secretary of State for the Home Department -v- Rehman [2003] 1 AC 153 at paragraphs 50-54. Lord Woolf also mentioned the threat identified by the United Nations Security Council "to international peace and security" requiring all states to take measures "to prevent the commission of terrorists attacks, including by denying safe haven to those who finance, plan, support or commit terrorist attacks". 336. As Lord Woolf made clear in paragraph 42 of his judgment, Part 4 of the 2001 Act could only be invoked by reference to what Brooke LJ referred to as: "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 a threat posed by Al-Qa'eda and its associated networks (and no-one else)" (at paragraph 98). 337. I should also refer to paragraph 57 of Lord Woolf's judgment, where he considered the impact of ECHR Article 6. He rejected the contention that proceedings before SIAC were criminal, saying that "they are civil proceedings within Article 6". He went on to say: "The proceedings before SIAC involve departures from some of the requirements of Article 6. However, having regard to the issue to be inquired into, the proceedings are as fair as could reasonably be achieved." 338. In M -v- Secretary of State, after an inter partes hearing, the Court of Appeal refused permission to the Secretary of State to appeal a decision of SIAC made under s25. Lord Woolf, having said in paragraph 2 that "SIAC is a superior court of record", then stated, in paragraph 11, consistently with his and Brooke LJ's observations in A -v- Secretary of State, that: "It is not enough that the person detained may have connections with a terrorist organisation. It must be a terrorist organisation which has links with Al-Qa'eda." 339. In paragraphs 9 and 16 of his judgment, Lord Woolf said this: "9. It will be observed that s25 refers to what SIAC considers the position to be. If SIAC considers 'there are no reasonable grounds for a belief or suspicion' then SIAC must cancel the certificate. Similarly, it must do so if it considers that the certificate should not have been issued. … 16. SIAC is required to come to its decision as to whether or not reasonable grounds exist for the Secretary of State's belief or suspicion. Use of the word 'reasonable' means that SIAC has to come to an objective judgment, the objective judgment has however to reached against all the circumstances in http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 80/113