9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) 233. The construction of statutes is hardly ever a value-free exercise. Where a statute on its ordinary construction infringes a constitutional right, the courts will look to see whether it may after all be construed so as to avoid or at least diminish such an infringement. This is not merely a function of HRA s.3(1). It is a function also of the common law, which gives special protection to constitutional fundamentals, albeit that s.3(1) is an interpretative tool of particular force in the context of ECHR rights. In any event there is here – leaving aside Mr Emmerson's arguments on the torture issue, to which I must come separately – no question of any actual or putative violation of the ECHR. It is true that Mr Gill, as I understood him, submitted that the derogation, articulated in the Derogation Order, only justified indefinite detention without trial and not the adoption of arbitrary procedures (such as a need only to show belief or suspicion) which were inherently repugnant to Article 5. But this submission in truth does no more than seek to re-introduce the discipline of the very provisions of Article 5(1) which are the subject of the United Kingdom's lawful derogation under ECHR Article 15, and as such is doomed to failure. 234. The question, then, is what the common law should say. Since it is elementary that the common law cannot step into the legislature's shoes, it has to be accepted that to conclude that suspicion, or for that matter belief, means or means in part something quite different – proof – is to climb a very tall hill indeed. In the end I am clear that we should not even step onto the lower slopes. First, we are dealing, as I said at the outset, with the tension between two constitutional fundamentals: the abhorrence of executive detention and the State's duty to safeguard its citizens and its own integrity. The first of these is in large measure the business of the courts, and the second the business of government. Where, as here, they clash, and the ground on which they do so is a statute which allows the first so as to secure the second, the courts' duty is surely as follows. First, they must respect the legislature's sovereignty; they cannot re-legislate; so much goes without saying. Secondly, so far as there is scope to construe the statute more or less narrowly so as to lean against executive detention without trial or to require stringent proof of its justification, the courts will look to see how far the legislature has built protections into the legislation out of respect for the first constitutional fundamental, the abhorrence of executive detention. To the extent that that is done, the court will incline to a broader construction of the power relied on by the State. To the extent that the legislation does not on its face respect this first constitutional fundamental, the court will look, so far as it may, to confine the conferred power of executive detention by a narrower construction of the statute. The principle is in essence that of proportionality, which the common law has made its own. It is that the courts will expect the legislature to interfere with fundamental constitutional rights to the minimum extent necessary to fulfil the State's duty to safeguard its citizens and its own integrity. If it is perceived that that is not done, the courts will tend to confine and restrict the legislation's interference with constitutional rights, so far as they may do so consistently with Parliament's ultimate legislative supremacy. It must be obvious that there should be a partnership, not an opposition, between the branches of government in these matters. 235. In the present case, the requirement that the belief and suspicion must be reasonable is in my judgment very important, especially at the s.25 appeal stage. It means that the appeal is no mere Wednesbury exercise. SIAC has a substantial task on the merits, to assess the presence or absence of reasonable grounds for the relevant suspicion and belief. It is plain that SIAC recognised this, and its detailed and meticulous treatment of the evidence, open and closed, testifies as much. The fact of a substantial, meaningful right of appeal to a senior independent court marks the legislature's respect for the first constitutional fundamental, the abhorrence of executive detention. So do the carefully structured procedures for the deployment of special advocates. Further, I attach no little importance to the other protections which I have summarised: the provisions for review in individual cases under s.26, the requirement for review of the operation of ss.21 – 23 under s.28, and the "sunset" clause provided in s.29. In this connection I have had in mind the observations of Lord Woolf CJ, set out at paragraphs 60 – 62 of his judgment in A, X, Y, concerning the reasoned opinion given by the Commissioner for Human Rights on aspects of the United Kingdom's derogation from Article 5. I need not, with respect, set out these materials. 236. In my judgment ATCSA provides for a reasonable balance between the constitutional fundamentals I have discussed. In those circumstances there is no cause to adopt a strained and artificial construction of the critical provisions in ATCSA, even if (which I greatly doubt) there were any legitimate scope to do so. This conclusion is, I think, supported by these observations of Lord Woolf CJ in M v Secretary of State: http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 59/113