A. AND OTHERS v. THE UNITED KINGDOM JUDGMENT
61
with the proposed receiving States. As a matter of fact, therefore, the
Government were not keeping the possibility of deporting the applicants
“under active review”.
142. The applicants further contended that it was abusive of the
Government, so late in the proceedings before the Grand Chamber, to
challenge the House of Lords’ decision quashing the derogation. In the
applicants’ view, it would be inconsistent with Article 19 and the principle
of subsidiarity for the Court to be asked by a Government to review alleged
errors of fact or law committed by that Government’s own national courts.
The Government’s approach in challenging the findings of its own Supreme
Court about legislation which Parliament had chosen to repeal aimed to
limit the human rights recognised under domestic law and was thus in
conflict with Article 53 of the Convention. Since the legislation had been
revoked and the derogation withdrawn, the Government were in effect
seeking to obtain from the Court an advisory opinion to be relied on
potentially at some later stage. To allow the Government to proceed would
impact substantially on the right of individual petition under Article 34 by
deterring applicants from making complaints for fear that governments
would try to upset the decisions of their own Supreme Courts.
143. In the event that the Court decided to review the legality of the
derogation, the applicants contended that the Government should not be
permitted to rely on arguments which they had not advanced before the
domestic courts. These included, firstly, the contention that it was justifiable
to detain non-national terrorist suspects while excluding nationals from such
measures, because of the interest in cultivating loyalty among Muslim
citizens, rather than exposing them to the threat of detention and the risk
that they would thereby become radicalised and, secondly, the argument that
the use of detention powers against foreign nationals freed up law
enforcement resources to concentrate on United Kingdom nationals (see
paragraph 151 below). Since the Government were seeking to introduce
these justifications for the derogation which were never advanced before the
domestic courts, the Court was being asked to act as a first-instance tribunal
on highly controversial matters.
144. Again, if the Court decided to examine the legality of the
derogation, there was no reason to give special deference to the findings of
the national courts on the question whether there was an emergency within
the meaning of Article 15. In the applicants’ submission, there were no
judicial precedents for recognising that an inchoate fear of a terrorist attack,
which was not declared to be imminent, was sufficient. All the examples in
the Convention jurisprudence related to derogations introduced to combat
ongoing terrorism which quite clearly jeopardised the entire infrastructure
of Northern Ireland or south-east Turkey. The domestic authorities were
wrong in interpreting Article 15 as permitting a derogation where the threat
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