9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) (2) Subsection (1) does not apply to an act if (a) as a result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation, which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. (3) In this section 'public authority' includes … a court or tribunal ….". The Derogation Order 309. On 11th November 2001, the Human Rights Act 1998 (Designated Derogation) Order 2001 (SI 2001 No 3644) was made, being laid before Parliament the following day, and coming into force the day after that. Its preamble begins by stating that "the United Kingdom is proposing to derogate from Article 5(1)" of the Convention, and that the Order was made by the Secretary of State pursuant to s14 of the 1998 Act. 310. Article 2 of the Derogation Order states that: "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 in anticipation of the making by the United Kingdom of the proposed derogation." The terms of the Schedule are important, because they explain why the UK government concluded that the national interest required the enactment of Part IV of the 2001 Act. 311. The Schedule begins by referring to the "public emergency in the UK" arising from "the terrorist attacks in New York, Washington DC and Pennsylvania on 11th September 2001" and the fact that the "threat from international terrorism is a continuing one". It goes on: "There exists a terrorist threat to the United Kingdom from persons suspected of involvement in international terrorism. In particular, there are foreign nationals present in the United Kingdom who are suspected of being concerned with the commission, preparation or instigation of acts of international terrorism, of being members of organisations or groups which are so concerned or of having links with members of such organisations or groups, and who are a threat to the national security of the United Kingdom." It then states that, as a result, "a public emergency, within the meaning of Article 15.1 of the Convention, exists in the United Kingdom". 312. The Schedule to the Derogation Order then goes on to explain the purpose of the 2001 Act. It is to make provision: "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 powers". It then summarises the procedure laid down by ss21-25, and the duration provisions of s29 of the 2001 Act. 313. The Schedule to the Derogation Order then explains that, in R -v- Governor of Durham Prison ex p Singh [1984] 3 All ER 983, it had been decided that the power of detention contained in Schedules 2 and 3 to the Immigration Act 1971 "can only be exercised during the period necessary, in all the circumstances of the particular case, to effect removal and … if it becomes clear that removal is not http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 77/113