One interesting feature of the recent decision of the nine-member panel of the Appellate Committee of the House of Lords in Judgment: SSHD v AF & Ors [2009] UKHL 28 was the dialogue between Lord Phillips in the leading judgment and Baroness Hale in relation to the latter’s observations in an earlier control order case.

Referring to the judgment of the Baroness in Secretary of State for the Home Department v MB and AF [2007] UKHL 46, Lord Phillips stated at para 18 "If some found Baroness Hale’s observations to be to some extent enigmatic …". Baroness Hale was also on the panel and responded (at para 100) "I wish to add a few words of my own, out of courtesy to, and sympathy with, those judges who have had to grapple with my “enigmatic” opinion" and went in (at para 101) "For what it is worth, which I agree is not much…".

Despite the heroic interpretative endeavours of the majority of the Court of Appeal in AF, the description "enigmatic" could properly be given to a number of other observations of membersof the Judicial Committee in MB.   This once again illustrates the problems with a multiplicity of concurring opinions.  An issue to which we will return. …

However "enigmatic" the comments of Baroness Hale might be thought to be, we are sure that they do not merit the description given by Justice Jackson to certain materials relating to presidential powers when he commented that the answer had to be  "divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharoah."  see


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