Court : House of Lords
Decided on : Jul-30-2008
LORD BINGHAM OF CORNHILL My Lords, 1. This appeal concerns the right to marry protected by article 12 of the European Convention on Human Rights, one of the articles to which domestic effect is given by the Human Rights Act 1998. It provides that “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right". More specifically, the appeal concerns the control of that right by the Secretary of State under and pursuant to section 19 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. The agreed issue is whether the scheme established by and under section 19 involves a disproportionate interference with (and therefore a breach of) the article 12 right to marry of any or all of the respondents. The Court of Appeal, affirming the first instance judge save on one point, held that it does. The Secretary of State challenges that conclusion. 2. Mr Baiai and Ms Trzcinska met in this co...
Tag this Judgment!Court : House of Lords
Decided on : Jul-30-2008
LORD SCOTT OF FOSCOTE My Lords, 1. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Brown of Eaton-under Heywood and for the reasons he gives, with which I am in full agreement, I would dismiss this appeal. LORD PHILLIPS OF WORTH MATRAVERS My Lords, 2. I have had the benefit of reading in draft the speech of my noble and learned friend, Lord Brown of Eaton-under-Heywood For the reasons that he gives, I too would dismiss this appeal. BARONESS HALE OF RICHMOND My Lords, 3. For the reasons given by my noble and learned friend, Lord Brown of Eaton-under-Heywood, with which I entirely agree, I too would dismiss this appeal. The answer to the certified question is ‘not in this case'. LORD BROWN OF EATON-UNDER-HEYWOOD My Lords, Introduction 4. The appellant is a 42 year old British citizen, an unemployed computer systems administrator. On 7 October 2004 the respondent government requested his extradition to the United States alleging that be...
Tag this Judgment!Court : House of Lords
Decided on : Jul-30-2008
LORD BINGHAM OF CORNHILL My Lords, 1. The issue in this appeal is whether a decision made by the appellant, the Director of the Serious Fraud Office, on 14 December 2006, to discontinue a criminal investigation was unlawful. The Queen’s Bench Divisional Court (Moses LJ and Sullivan J) held it to be so: [2008] EWHC 714 (Admin). That court accordingly quashed the Director’s decision and remitted it to him for reconsideration. In this appeal to the House the Director contends, as he contended below, that the decision was not unlawful. Mr Robert Wardle, the Director who made the decision under review, has now been succeeded in his office, but this change of office-holder does not affect the issue to be decided. The respondents are public interest organisations. The House has received written submissions on behalf of JUSTICE. The facts 2. By sections 108-110 of the Anti-terrorism, Crime and Security Act 2001 it was made an offence triable here for a UK national or company to mak...
Tag this Judgment!Court : House of Lords
Decided on : Oct-22-2008
LORD HOFFMANN My Lords, 1. This appeal concerns the validity of section 9 of the British Indian Ocean Territory (Constitution) Order 2004 (“the Constitution Order”): “(1) Whereas the Territory was constituted and is set aside to be available for the defence purposes of the Government of the United Kingdom and the Government of the United States of America, no person has the right of abode in the Territory. (2) Accordingly, no person is entitled to enter or be present in the Territory except as authorised by or under this Order or any other law for the time being in force in the Territory.” 2. The Constitution was made by prerogative Order in Council. The Divisional Court (Hooper LJ and Cresswell J) held section 9 to be invalid and this decision was affirmed by the Court of Appeal (Sir Anthony Clarke MR and Waller and Sedley LJJ). The Secretary of State appeals to your Lordships’ House. 3. The British Indian Ocean Territory (“BIOT”) is situated ...
Tag this Judgment!Court : House of Lords
Decided on : Oct-22-2008
LORD HOPE OF CRAIGHEAD My Lords, 1. The fair-minded and informed observer is a relative newcomer among the select group of personalities who inhabit our legal village and are available to be called upon when a problem arises that needs to be solved objectively. Like the reasonable man whose attributes have been explored so often in the context of the law of negligence, the fair-minded observer is a creature of fiction. Gender-neutral (as this is a case where the complainer and the person complained about are both women, I shall avoid using the word “he”), she has attributes which many of us might struggle to attain to. 2. The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious, as Kirby J observed in Johnson v Johnson (2000) 201 CLR 488, 509, para 53. Her approach must not be confused with that of the person who has brought ...
Tag this Judgment!Court : House of Lords
Decided on : Oct-22-2008
LORD HOPE OF CRAIGHEAD My Lords, 1. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Neuberger of Abbotsbury. I agree with it, and for the reasons he gives I would dismiss the appeal. I also agree with the additional observations by my noble and learned friend Lord Walker of Gestingthorpe. LORD RODGER OF EARLSFERRY My Lords, 2. I have had the advantage of considering the speech to be delivered by my noble and learned friend, Lord Neuberger of Abbotsbury in draft. I agree with it and, for the reasons he gives, I too would dismiss the appeal. I also agree with the additional observations of my noble and learned friend, Lord Walker of Gestingthorpe. LORD WALKER OF GESTINGTHORPE My Lords, 3. I have had the great advantage of reading in draft the opinion of my noble and learned friend Lord Neuberger of Abbotsbury. I agree with it and for the reasons given by Lord Neuberger I would dismiss this appeal. I venture to add only two brief comments, bot...
Tag this Judgment!Court : House of Lords
Decided on : Oct-22-2008
LORD HOPE OF CRAIGHEAD My Lords, 1. After the conclusion of the hearing, and following deliberation, the parties were informed that the appeal would be allowed for reasons to be given later. The following are my reasons for inviting the House to allow the appeal, to set aside the orders below and to quash the Secretary of State’s decision that the appellant and her son must be returned to Lebanon. 2. The case for allowing the appellant and her son to remain in this country on humanitarian grounds is compelling. That is shown by the facts that my noble and learned friend Lord Bingham of Cornhill has described. But the appellant does not wish to rely on the Secretary of State’s discretion. She claims that she has a right to remain here under article 8 of the European Convention on Human Rights read in conjunction with article 14. So the question is whether she has established that she and her son would run a real risk of a flagrant denial of the right to respect for their fam...
Tag this Judgment!Court : House of Lords
Decided on : Oct-29-2008
LORD HOFFMANN My Lords, 1. At common law a lease is a contract between landlord and tenant which, if the landlord himself has or acquires an estate in the land, vests a leasehold estate in the tenant. The lease will ordinarily contain covenants to be performed by the tenant during the term of the lease and (in the absence of express contrary provision) these covenants mean what they say. A tenant who has covenanted to pay the rent during the term is liable to pay the rent during the term, whether or not he has assigned the leasehold estate to someone else. 2. This rule was changed by section 5(2) of the Landlord and Tenant (Covenants) Act 1995, which provides that if a tenant assigns the demised premises, he is released from his covenants. But the change applies only to tenancies granted after the Act came into force on 1 January 1996. The common law continues to apply to earlier tenancies, but subject to restrictions contained in sections 17 to 20. For present purposes, the relevant r...
Tag this Judgment!Court : House of Lords
Decided on : Nov-12-2008
LORD HOPE OF CRAIGHEAD My Lords, 1. By the Treaty on Accession that was signed in Athens on 16 April 2003 an agreement was entered into for the accession on 1 May 2004 of 10 new member states to the European Union, including the Republic of Poland. The European Union (Accessions) Act 2003 made provision for the Accession Treaty to be implemented into domestic law. One of the issues that the Accession Treaty addressed in the case of the acceding member states other than Cyprus and Malta (“the A8 states”) was the freedom of movement for workers which is guaranteed by article 39 of the Treaty establishing the European Community (“article 39EC”). The accession of Cyprus and Malta, on account of their small size, was not seen as being likely to overload the labour markets of the 15 existing member states. But it was decided as an integral part of the Treaty to lay down conditions as to access to their labour markets by nationals of the A8 states. 2. Part 2 of Annex ...
Tag this Judgment!Court : House of Lords
Decided on : Nov-12-2008
LORD HOFFMANN My Lords, 1. I have had the privilege of reading in draft the opinion of my noble and learned friend Lord Carswell. I agree with it and, as he has dealt fully with the facts and the law, I shall not detain your Lordships by covering the same ground. For the reasons he gives, I would dismiss the appeal. 2. It may however be of some assistance in future cases if I comment on the intervention by the Northern Ireland Human Rights Commission. In recent years the House has frequently been assisted by the submissions of statutory bodies and non-governmental organisations on questions of general public importance. Leave is given to such bodies to intervene and make submissions, usually in writing but sometimes orally from the bar, in the expectation that their fund of knowledge or particular point of view will enable them to provide the House with a more rounded picture than it would otherwise obtain. The House is grateful to such bodies for their help. 3. An intervention is howe...
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