- 34 A torture or inhuman treatment, over which question the executive has no B constitutional prerogative. C 60. D E F A B Based on the above authorities, Mr Yu submits that the executive’s decision based on national security considerations is not immune from judicial scrutiny in that there must be evidence to prove that, in fact, such a decision was truly based on national security considerations. But once this fact has been proved, the court will not substitute its own C D E F views on what is required in the interests of national security, or what G H action is needed to protect such interests, such as an injunction in the present case, unless it is one that no reasonable executive authority could G H have made. I I We agree but subject to one important caveat. As seen from 61. J K L M N the third judicial function outlined by Lord Hoffmann in Rehman at [54], where an issue arising from the measure adopted by the executive in combating national security risks does not lie within its exclusive province, the executive enjoys no constitutional prerogative. In discharging its judicial function, the court will give appropriate deference to the executive but will make its own judgment on the issue as required. The authorities J K L M N show that there are at least three areas where the court has been held to be O P qualified to make its own judgment while giving the executive deference. They involve issues with constitutional or legal nature or content: (1) Q Where a fundamental right of the person affected by the measure is engaged. 33 R national security was a matter of political judgment for the executive and Parliament, where Convention rights were in T U V 33 See also Part 2.4 below. P Q In A, the majority of the House of Lords held that although the response necessary to protect S O R S T U V