9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) 481. On the face of it, there is an Order which has been laid before, and effectively approved by, the legislature, under which the UK government has derogated from an Article of the ECHR. The appellants' contention is effectively that if evidence obtained by torture is admissible before SIAC, the derogation is invalid in light of ECHR Article 15(1). The notion that a provision in, or the whole of, a statutory instrument can be declared unlawful and ineffective by the court is, of course, wellestablished. However, the court can only reach such a conclusion on the basis of English law, that is common law or statutory law. Insofar as an English court relies on international treaties, it can only do so insofar as the treaties are incorporated into English law, as pointed out by Lord Hoffmann in paragraph 27 in Lyons. 482. The appellants' contention that the derogation effected by the Derogation Order would be unlawful rests on the closing words of Article 15(1). However, that Article is not incorporated into English law, because it is not identified as a Convention right under the 1998 Act. In those circumstances, it appears to me that it may well not be open to an English court to conclude that a derogation effected by the UK government purportedly pursuant to ECHR Article 15, and embodied in something which is plainly a "designated order", was ineffective because it does not comply with, or satisfy the requirements of, ECHR Article 15. Indeed, if that is right, then, even if the court was satisfied that the derogation did not satisfy ECHR Article 15, I doubt it would be open to the court to make a declaration of incompatibility under s4 of the 1998 Act. That is because, under s4(2) the court has to be satisfied that "the provision is incompatible with a Convention right" which brings one straight back to the definition of Convention rights in s1. 483. A troubling aspect of this argument, is that it does not seem to have been raised in A -v- Secretary of State. In part (6) of his judgment in that case, Lord Woolf, at paragraphs 32-36, expressly considered "whether there has been compliance with the threshold requirements for derogation. There does not appear to have been any suggestion in that case, either in argument or from the court, that that was not something which it was open to an English court to consider. (In this connection see also paragraphs 72-85 and 99 of the judgment of Brooke LJ, and paragraphs 140-151 of the judgment of Chadwick LJ). It may be that it was assumed (possibly correctly) that the reference to derogation in s14(1) of the 1998 Act should be interpreted as referring only to a lawful or effective derogation. 484. Even if the English courts cannot rule on the effectiveness of a derogation, I do not think that it would follow that it would not be open to an English court, when determining an issue, to take into account the fact that, if it is determined one way, it would involve the UK infringing the ECHR. It is clear from the observations of Lord Bingham and Lord Hoffmann in Lyons that the English courts, even before the 1998 Act came into force, were influenced, in many cases strongly, by the provisions of the ECHR, even though they were not at that time incorporated into English law. By the same token, it appears to me that this court can properly be influenced by the fact that, if a certain point is determined one way, it would appear to result in a purported derogation by the UK government pursuant to ECHR Article 15(1) being ineffective. 485. I turn to the Secretary of State's second point in this connection, which is that, in any event, the closing words of ECHR Article 15(1) are not of assistance to the appellants' contention in this case. The derogation effected by the UK government, as expressed in the Derogation Order, was limited to ECHR Article 5(1)(f). In A -v- Secretary of State, Lord Woolf had no difficulty in rejecting an argument on behalf of the Secretary of State that the derogation effected by the Derogation Order, although only expressed in relation to ECHR Article 5(1)(f), also involved an implied derogation in relation to ECHR Article 14 (see paragraphs 30 and 31). 486. However, I do not accept that it follows that, in order to determine whether the requirements of ECHR Article 15(1) are satisfied, one must confine oneself to considering that issue in relation to ECHR Article 5(1)(f). First, it does not accord with the view taken by SIAC, not appealed by either party, in A -v- Secretary of State. Secondly, that does not seem to me to be what ECHR Article 15(1) naturally means. Thirdly, it would involve a triumph of form over substance, and provide an easy and attractive escape route for a government which wished to derogate. It would mean that a derogating government could, whether in good faith or artfully, identify a single Article or sub-Article from which it was purporting to derogate, which would then shut out the possibility of any argument that it had in fact http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 103/113