A. AND OTHERS v. THE UNITED KINGDOM JUDGMENT
59
account in forming a global assessment of the applicants’ treatment for the
purposes of Article 3.
134. In all the above circumstances, the Court does not find that the
detention of the applicants reached the high threshold of inhuman and
degrading treatment.
135. The applicants also complained that they did not have effective
domestic remedies for their Article 3 complaints, in breach of Article 13. In
this connection, the Court repeats its above finding that civil and
administrative law remedies were available to the applicants had they
wished to complain about their conditions of detention. As for the more
fundamental aspect of the complaints, that the very nature of the detention
scheme in Part 4 of the 2001 Act gave rise to a breach of Article 3, the
Court reiterates that Article 13 does not guarantee a remedy allowing a
challenge to primary legislation before a national authority on the ground of
being contrary to the Convention (see James and Others v. the United
Kingdom, 21 February 1986, § 85, Series A no. 98, and Roche v. the United
Kingdom [GC], no. 32555/96, § 137, ECHR 2005-X).
136. In conclusion, therefore, the Court does not find a violation of
Article 3, taken alone or in conjunction with Article 13.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
137. The applicants contended that their detention was unlawful and
incompatible with Article 5 § 1 of the Convention.
138. In their first set of written observations, following the
communication of the application by the Chamber, the Government
indicated that they would not seek to raise the question of derogation under
Article 15 of the Convention as a defence to the claim based on Article 5
§ 1, but would leave that point as determined against them by the House of
Lords. Instead, they intended to focus their argument on the defence that the
applicants were lawfully detained with a view to deportation, within the
meaning of Article 5 § 1 (f).
However, in their written observations to the Grand Chamber, dated
11 February 2008, the Government indicated for the first time that they
wished to argue that the applicants’ detention did not in any event give rise
to a violation of Article 5 § 1 because the United Kingdom’s derogation
under Article 15 was valid.
139. Article 5 § 1 of the Convention provides, in so far as relevant:
“1. Everyone has the right to liberty and security of person. No one shall be
deprived of his liberty save in the following cases and in accordance with a procedure
prescribed by law:
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