9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) organisations or groups, and who are a threat to the national security of the United Kingdom. As a result, a public emergency, within the meaning of Article 15(1) of the Convention, exists in the United Kingdom." 12. The provisions of the then proposed 2001 Act are summarised and it is stated that the Act "is a measure which is strictly required by the exigencies of the situation". The Act is described as a "temporary provision" and reference is made to its being subject to annual renewal by Parliament. 13. Existing powers are described, by reference to authority, and the perceived gap which it was thought necessary to fill by legislation: "In some cases, where the intention remains to remove or deport a person on national security grounds, continued detention may not be consistent with Article 5(1)(f) as interpreted by the Court in the Chahal [(1996) 23 EHRR 413] case. This may be the case, for example, if the person has established that removal to their own country might result in treatment contrary to Article 3 of the Convention. In such circumstances, irrespective of the gravity of the threat to national security posed by the person concerned, it is well established that Article 3 prevents removal or deportation to a place where there is a real risk that the person will suffer treatment contrary to that article. If no alternative destination is immediately available then removal or deportation may not, for the time being, be possible even though the ultimate intention remains to remove or deport the person once satisfactory arrangements can be made. In addition, it may not be possible to prosecute the person for a criminal offence given the strict rules on the admissibility of evidence in the criminal justice system of the United Kingdom and the high standard of proof required. Derogation under Article 15 of the Convention The Government has considered whether the exercise of the extended power to detain contained in the Anti-terrorism, Crime and Security [Act 2001] 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 reasoning which led to the 2001 Act is discussed in the judgment of Lord Woolf CJ in A & Ors. The assumption underlying the derogation order is that there are persons who cannot lawfully be deported. In Secretary of State for the Home Department v Rehman [2003] 1 AC 153 Lord Hoffmann stated: "The European jurisprudence makes it clear that whether deportation is in the interests of national security is irrelevant to rights under Article 3. If there is a danger of torture, the government must find some other way of dealing with a threat to national security." 14. The 2001 Act was duly enacted on 14 December 2001 and the relevant legislation is in Part 4 of the Act, headed "Immigration and Asylum". Section 21 provides, insofar as is material: 1. The Secretary of State may issue a certificate under this section in respect of a person if the Secretary of State reasonably(a) believes that the person's presence in the United Kingdom is a risk to national security, and http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 4/113