Friday, 7 July 2017

Criticism of Sir Martin Moore-Bick – fair or not?

A brief post on former Court of Appeal judge Sir Martin Moore-Bick, who has recently come out of retirement so people can shout at him and tell him what an arse he is.

Who'd be a judge ey? I hope he doesn't turn out to a fencer and/or gay, or this might turn into a pile-on.

It's possible some of the criticisms aren't entirely unfair, though most probably are. 

David Lammy's assertion that Moore-Bick is unsuitable because of the colour of his skin is beneath contempt. It is also sadly predictable. Far from landing any blows on Moore-Bick, Lammy's outburst, as well as his demand made one day after the Grenfell fire for corporate manslaughter charges, demonstrate much more clearly Lammy's complete unsuitability to continue conducting a review into BME criminal sentencing.

The accusation from Labour's Emma Coad that Moore-Bick is a 'technocrat' was at least diverting. Are judges technocrats? I'm not sure a public official who facilitates the rule of law can be called a technocrat – a nomocrat maybe? The source of a technocrat's power is his or her knowledge and expertise – a judge's power derives from the law, which he or she expertly applies. That feels like an important difference.

It is obviously true to say Moore-Bick is part of the establishment – as an ex-judge he couldn't be anything else. That doesn't make it fair to say he is therefore not impartial. This is probably part of the wider problem of identity politics – if identity determines how people think and act, then impartiality is more or less impossible. I doubt arguments as to Sir Martin's integrity and scrupulousness will do much to defeat this widespread mode of thinking – but it should still be called out for what it is, i.e. prejudice.

Similarly, it could well be true to say that Moore-Bick comes across as forbidding and somewhat patrician. When I saw him sit in the Court of Appeal – in a case involving housing law, coincidentally – he certainly had that air. However it would take an extraordinarily closed mind to say that he therefore could not be a fair investigator of facts. I recall also that he was sharp as a knife.

The complaint that Sir Martin would be incapable of sharing Grenfell residents' emotions about the fire may or may not be fair, I don't know. It's certainly harsh. But it is also irrelevant – his job is to investigate the facts, and an emotional investment in the disaster is more likely to hinder than help the investigation. This should be a fairly compelling argument to make in Moore-Bick's favour, but in our new Age of Sentiment it probably carries less weight than it should. Which is a shame.

The criticism that Sir Martin specialised in commercial rather than criminal law is similarly irrelevant. If his remit were to decide questions of law, then maybe this would be relevant – but his job is to investigate the facts of how the fire started, and fair and thorough examination of facts and expert evidence is something he has done throughout his judicial career. It is also misleading to exaggerate his commercial specialism – at all stages of his judicial career he will have tried a wide range of cases (presumably including criminal cases when he was a High Court judge).

Against all of these criticisms must be set the welter of testimony from barristers and ex-judges to Moore-Bick's integrity and fairness.

Nzolameso v City of Westminster

The only criticism that might have any real weight concerns Moore-Bick's decision, later overruled by the Supreme Court, in Nzolameso v City of Westminster [2014] EWCA Civ 1383. Lord Justice Moore-Bick, as he was then, held, with the agreement of two other appeal judges, that it was lawful for Westminster City Council to house a homeless mother and her five children some 50 miles from her previous home, on the grounds that the Housing Act 1996 allows an authority to house applicants in another district if it is not 'reasonably practicable' to house them in their home district. Moore-Bick's reasoning was that determining 'reasonable practicability' must include consideration of the council's resources, staffing, as well as the needs of other applicants requiring housing.

The Supreme Court rejected this argument on appeal, with a forcefulness that seems to suggest to some that Moore-Bick's decision was perverse. Baroness Hale reversed the decision on the grounds that laws regarding the welfare of children not considered by the Court of Appeal (and possibly not argued before it) weighed against relocation in a different district; that the reasons for the decision to house the claimant outside Westminster were not properly evidenced or explained to her; that the council had not explored other, closer housing options before proposing to house the claimant in Milton Keynes.

Baroness Hale's most damning criticism of Moore-Bick's judgment is that he was excessively lenient in assuming that the council's decision makers must have followed the proper steps in coming to their decision, even though there was insufficient evidence for such an assumption. Even though reasons for the decision were not given, Moore-Bick was confident that they would have been the right ones. Were it law, the effect of his judgment could be to deny citizens the right to have decisions by public bodies reviewed – if a citizen did not know how a decision affecting her had been made, then she couldn't see if the decision had taken into account the proper lawful considerations, nor could she apply to a court to enforce the proper decision-making process. It would, in other words, allow a local authority to evade accountability.

On the face of it, then, Moore-Bick does seem to have given very generous leeway to the council in this case. It is also impossible not to notice that while his judgment makes mention of the claimant's illness, it is only in the Supreme Court judgment that you read just how unwell and vulnerable she was.

On the other hand, however, it is almost certain that Moore-Bick wasn't motivated by a desire to give local authorities an easy ride, or by a perverse desire to short-change the claimant of her civil rights. He makes clear Parliament's intention in passing the legislation – to relieve pressure on authorities with insufficient housing stock – and also acknowledges the severe pressure on council finances and resources. He also acknowledges the competing needs of others applying for housing. The decision is fairly clearly wrong – the extent of Moore-Bick's leniency to the council makes the Supreme Court's later rebuke fairly predictable – but it seems to result from an over-readiness to assume that, because Moore-Bick himself understood the urgency of the housing crisis and Parliament's intention to tackle it, the council's decision must have been informed by a similar understanding. He got the balance wrong. It does not follow that Moore-Bick disregarded the claimant's situation, or takes the side of authorities over citizens in need.

It should also be said that this is only one judgment, among goodness knows how many others Moore-Bick made. If this judgment is the strongest ground for demanding he step down, then it is right to bring it up and debate its significance, but it can't on its own prove his unsuitability – particularly in the face of the legal profession's unanimous respect for him.

Govian medicine

Typically excellent article by Ed Conway in today's Times. Though my opinion on what is excellent economic analysis probably doesn't count for much.

He makes another plea for creative, radical thinking from government in order to exploit the opportunities of Brexit and to solve Britain's productivity puzzle.

The depressing subtext throughout is that our political class is not equal to those challenges. It's likely we'll only find a way to unlock economic opportunities if we first find politicians who are imaginative and open-minded enough to spot and pursue those opportunities when they arise.

Why are such politicians so hard to find? I suspect one answer lies in the execrable Nick Timothy and Fiona Hill. Increasingly, political thinking is done by advisors who understand everything about policy, but little about politics and people – frontline politicians are then mere delivery mechanisms for getting wonk-derived policy out to voters.

The problem with this lack of joined-up thinking was demonstrated by the social care debacle. The policy was devised without enough input and oversight from elected politicians whose job it is to understand what voters want and what solutions they might accept. When voters rejected it, May was left holding the baby. There was little she could do to credibly defend or adapt the duff policy, because she'd never really owned it in the first place – there's not much the postman can do when Amazon pick the wrong book from the warehouse shelf, other than throw up his hands. And there wouldn't be much he could do about it even if he were compelled to try. Unfortunately, elected officials can't throw up their hands and renounce responsibility – responsibility is their job. May couldn't pass the buck, but neither could she manage the situation effectively because it wasn't fully one of her own making. So she took the only remaining option, which was to squirm.

It's surely time to move away from this rigid division of labour between thinkers producing policy content on the one hand and elected politicians acting as quasi-deliverymen on the other. The creative thinking behind policy needs a greater input from the elected ministers who will deliver it and (in an ideal world, perhaps) who have a greater understanding of the people who hold politicians to account and who are affected by their decisions.

That means more politicians like Michael Gove, Frank Field, Oliver Letwin. Even if people don't like Gove, or his politics, we are not going to make the most of opportunities, and improve public life more widely, without politicians like him. Gove and his ilk may be unpopular, but maybe people need to get over themselves – this is a question of necessity. To coin a phrase, there is no alternative.

If the rise of Momentum, and the particular chap they support, continues, then the need for thoughtful politicians –who can decide policy as a matter of issues and principle, instead of mere partisanship – will be all the greater. 

Thursday, 6 July 2017

Afghan war crimes allegations 2: The Blackman defence

Lord MacDonald, the former Director of Public Prosecutions and current Warden of Wadham College, Oxford, has called for a judge-led inquiry into the ditching of the Royal Military Police inquiry. There is a clear public law question as to whether it was lawful or rational for the MoD to stifle the RMP inquiry, and whether it actually did stifle it. There is also a criminal law question surrounding the soldiers’ alleged conspiracy to plant weapons on the corpses of civilians.

However I’m most interested in whether the RMP could have any success in bringing murder charges, as they intended to, in light of the Court of Appeal’s decision in the Alexander Blackman case. 

Blackman had been accused of killing a wounded Taliban militant in cold blood. The video evidence seemed to show as much, and at first instance he was convicted of murder by a military court. The Court of Appeal subsequently agreed in its judgment that he had the partial defence of diminished responsibility, which led to a substituted conviction for the lesser offence of voluntary manslaughter. Blackman’s responsibility for killing the militant was diminished, the court held, because his role as a marine sergeant in Helmand put him under ‘quite exceptional stressors’ [109] leading to an ‘abnormality of mental functioning’ per section 2 of the amended Homicide Act 1957.

My concern is that, if followed closely, the judgment in Blackman would mean that any infantryman or marine accused of killing a combatant hors de combat in an intense and stressful campaign would be able to run the partial defence of diminished responsibility. As infantry fighting is almost always intense and stressful – the job is still commonly described as ‘closing with and killing the enemy’ – the effect of Blackman might be to make it almost impossible for any infantryman to be convicted of murder, no matter how callous and calculated the killing. If stress is intrinsic to being a soldier on the front line, does Blackman create an intrinsic defence to murder?

This in turn engages matters of public policy. It is clearly in the national interest to maintain a cadre of soldiers who are able to kill lawfully in combat for purposes of national defence, who are trained to do so in a professional manner strictly distinct from outright murder, and whose conduct does not diminish the standing of the armed forces or of the nation. If it becomes impossible to identify and punish murder when it is committed by infantrymen and marines, then the professionalism of the armed forces and the national standing would be harmed. As, of course, would justice itself.

On the other hand, however, as soldiers have rights and duties under law as everyone does, and do not form a special class of citizen with special privileges or restrictions, they must in turn have the right to a lawfully valid defence such as diminished responsibility.

How, then, can these two conflicting aims be reconciled? How can we insist that soldiers kill lawfully and professionally, in intrinsically stressful circumstances that would defeat civilians’ ability to act rationally, while also accepting that in some circumstances soldier’s responsibility to kill lawfully and professionally is diminished by the mental stress that combat can cause?

I argue that a balance can be struck, but it is not to be found in Blackman.

Critique of Blackman

The Court of Appeal found that Blackman did indeed kill the injured militant in cold blood, but that his responsibility for doing so was diminished by an ‘adjustment disorder’, a psychological impairment caused by the stresses of combat in Helmand province. He was not in his right mind when he committed the killing.

In making this finding, the court applied section 2 of the amended Homicide Act 1957. The section says that a defence of diminished responsibility requires the following:

  • an abnormality of mental functioning 
  • which arose from a recognised medical condition,
  • and substantially impaired the defendant’s ability (a) to understand the nature of his conduct; (b) to form a rational judgment; (c) to exercise self control.
If it can be proved that the abnormality explained why the defendant killed, then the defendant cannot be guilty of murder but can still be convicted of manslaughter. Importantly, it is for the defence to prove, on the balance of probabilities, that the defendant suffered from the abnormality – if the defence is made out to that standard, then the prosecution must rebut it beyond reasonable doubt in order for a murder charge to stand.

It is certain that due to Blackman’s condition the charge for murder could not have been proved beyond reasonable doubt, and highly likely that the prosecution could not have rebutted a defence of diminished responsibility to that standard. I am less certain, however, that the defence of diminished responsibility could have been proved on the balance of possibilities in the first place.

The psychological assessment of Blackman which uncovered the adjustment disorder was carried out some time after the incident, which led the prosecution to object that it could not be proved that his mind was impaired when he killed the militant. The court seems to have rejected this contention on the grounds that Blackman, previously an exemplary soldier, was showing signs of stress before the incident, and was in such difficult and stressful circumstances at the time of the killing that it could be inferred that the adjustment disorder determined his behaviour when he killed the militant. Those circumstances were:

  • Returning to UK to scatter ashes of recently deceased father;
  • B had not received the full amount of pre-deployment training;
  • had not been trained in Trauma Risk Management
  • junior officer killed whilst on patrol, thus B lost the support of his junior officer (‘of material significance as a stressor’)
  • powerful evidence that members of the unit under B's command were always on edge and did not feel safe at night
  • Padre did not visit B’s post because it was too dangerous (‘evidence of a further stressor’
  • The base was ‘during summer months under constant external threat and difficult to reach safely. It was isolated. It was without doubt austere.’
  • J company had been hardest hit by the insurgents, that they were losing ground to the insurgents and by the end of the tour were combat weary.
  • B's unit was undermanned: the previous multiple had been 25; the multiple under the appellant was 16
  • Unit was required to patrol between 5 and 10 hours a day over rough ground in heat that was normally over 50 degrees Celsius when carrying a minimum of 100lbs of equipment. The court rejected the submission that this was irrelevant to the psychiatric assessment
  • All men exhausted and deprived of sleep, but B particularly so as sgt
  • B regarded himself as responsible for welfare of troops.

Viewed in totality, this is a compelling list of stressors, particularly when the subsequent proof of the adjustment disorder is taken into account. There are, however, two difficulties. 

First, the wording of the Homicide Act specifically requires a subjective impairment that impairs the defendant’s internal mental functioning and, subsequently, how he acts – is proof of the external circumstances endured Blackman enough to infer, on the balance of probabilities, an internal state of mind? As I discuss below, what if he just powered through? 'Cracked on' as the military say. It seems to me that the court gave undue weight to objective circumstances without determining how they caused an impairment in Blackman’s reasoned and reflective self-control.

Second, the circumstances listed above, while probably unendurable for a civilian like myself, reflect in large part the imperfect realities of being an infantryman or marine fighting in the difficult Helmand campaign. The physical ordeal, the less-than-adequate training and manpower, the stress of imminent danger, the horrors of violent killing – it is overwhelmingly likely that most infantrymen, especially those who fought in Helmand, would be able to cite similar stresses if accused of murdering the enemy. 

Consider next that, as the court heard from an expert witness, ‘about 20-25% of combat troops deployed to Iraq and Afghanistan at some point suffered from a mental health difficulty’ – and consider too that any accused soldier would probably be legally advised to get himself within that 20-25% bracket. 

The corollary, then, of the court’s emphasis on external circumstances as a means of ascertaining Blackman’s internal state of mind is to create a precedent in which almost any infantryman accused of battlefield murder could avail himself of a blanket partial defence.

An objective duty of resilience?

How can the Homicide Act, and the Court of Appeal’s construction of it, be interpreted so as to allow infantrymen the right to the diminished responsibility defence, without it being a blanket defence?

First, a solution that could not work.

There are obvious policy grounds for demanding that soldiers behave lawfully even when faced by stress that would impair others – that is, largely, one of the main points in training people to be soldiers. As Joseph Heller asserts in Catch-22, seeking to get out of combat is merely proof that you are sane – only an insane person would do otherwise. However, while it is reasonable to acknowledge that soldiers often inhabit a world far removed from the world of civilians of lawyers and judges, in which mind-bending stresses are the norm, it could not be just to demand legally that soldiers meet an objective, raised standard of mental resilience. 

First, at a certain level of mental functioning minds control people, people don’t control minds. If an impaired mind caused someone to do something illegal, he or she could not be held culpable for failing to meet some objective standard of resilience, as doing so was beyond his or her control – to hold that person culpable would be to punish him or her for not having a different mind, essentially for not being a different person. The need for soldiers who can kill in stressful situations without becoming insane or criminal is important, but not so important that it could justify such obvious unfairness. Soldiers are people.

Second, it would not be just to hold soldiers to a higher legal standard, such that a soldier would be liable for murder where a civilian would be liable for manslaughter, simply on the grounds that the soldier should have been more resilient. That would be to say that the state could legally punish soldiers for failing to meet super-human standards of resilience. Again, this would be unfair as soldiers are human and cannot be punished for being any less.

It is difficult to see how soldiers could be forced to accept a higher, less diminishable responsibility of reasoned self-control without the above problems biting. So any solution to the conundrum must be found within the current provisions of the Homicide Act – once it is shown as a matter of fact that the mind of any defendant is impaired, thus causing him to commit homicide, the partial defence of diminished responsibility becomes available.

Subjective resilience

The Homicide Act 1957 says that a recognised medical condition must 
substantially impair the defendant’s ability (a) to understand the nature of [his] conduct; (b) to form a rational judgment; (c) to exercise self control.
In specifying that the ability to exercise self-control etc. is the ability of the defendant, the Act leaves it open to the court to take into account as a matter of fact the subjective capacity for self-control of different defendants, even in the face of mental impairment. It is uncontroversial that infantrymen and marines acquire through their training a heightened ability to form rational judgments and exercise self-control in extremely stressful circumstances (as accepted by the court at [71]). Should Blackman have had to prove, then, that the impairment was such that it diminished a capacity for self-control that was already unusually heightened?

There is a fair argument that the court should have paid much more to the following:

  • the typical resilience of infantrymen, and the extent to which Blackman showed more or less of such resilience;
  • the typical stress-related mental impairments faced by infantrymen in combat, and the extent to which Blackman’s impairment exceeded them; and
  • the likelihood that the mental impairment suffered by Blackman exceeded his soldierly self-control and resilience in the face of particular stresses, such that it was, on the balance of probabilities, the cause of his killing the injured militant.

This is a purely factual question. If such an approach were suggested to a jury in a similar trial, it would have to consider questions about mental causation and might even have to reject expert psychiatric evidence. The authority of Golds says that a jury can be invited to reject expert evidence, though the judge must suggest some rational basis for doing so. It would fall within Golds for a judge to ask a jury if it believed that a particular soldier’s mental resilience would have allowed him to retain reasoned self-control in spite of a proven mental impairment – though I accept that in practice this could be difficult.

A legal question also arises – this approach might increase the burden on the defendant such that he had to prove not only the mental impairment but also a) his levels of resilience and b) that the impairment defeated his resilience. While Blackstone’s Criminal Practice is fairly clear in submitting that the switched burden in section 2 of the Homicide Act 1957 does not infringe the Article 6 right to a fair trial, it is possible that any addition to that burden might.


I think the Court of Appeal was wrong to put such emphasis on Blackman’s circumstances – it shifted the attention from his mental state, which the Act requires, and created the possibility of a blanket defence for soldiers who have killed unlawfully in intense combat. I am fairly sure that, if the Blackman decision were followed, the special forces soldiers currently accused of murder in Afghanistan would by default be able to take advantage of the diminished responsibility defence – particularly given reports of the over-deployment and exhaustion of special forces units, and the greater regularity with which they are required to kill at close proximity (in so-called ‘night raids’ for instance).

It is consistent with the Act to take account of a defendant’s subjective resilience, and doing so might be a way of keeping the DR defence open to soldiers, while still defending the policy that trained soldiers should be expected to tolerate heightened (but not infinite) stress, and kill professionally but not murderously.

The question is part of a wider, very difficult problem of litigating what happens on the battlefield. It is undesirable to say that soldiers should form a separate class of people with separate legal duties, as it would then be consistent also to say that they should have special rights and privileges beyond those enjoyed by other citizens. Yet it is also absurd to disregard the fact that fighting in war is far removed from the realities most citizens face. It is likely this will remain a conundrum.

Monday, 3 July 2017

Afghan war crime allegations 1: Accountability

I recently read an extraordinary investigation by the Sunday Times Insight Team alleging that a UK special forces unit working in Afghanistan turned bad.

The allegations are:
  • The unit (presumably a squadron within the SAS) killed Taliban suspects having hooded and handcuffed them;
  • Soldiers planted weapons on dead suspects to justify killing people who may have been totally innocent farmers not linked to the Taliban;
  • The MoD then wound down the Royal Military Police investigation into the killings, perhaps believing that it could be buried amid the widespread scepticism about UK war crimes investigations caused by the Iraq Historic Allegations Team and Phil Shiner.
A couple of points of interest here, one political, the other legal.

The political issue: accountability deficit

First, it’s notable that a regular army officer stationed nearby was concerned that UK special forces were operating freely and without accountability (quoted in the Times, behind the paywall). 

I’ve banged on about this before – this is a manifestation of a systemic problem facing the entire UK armed forces, and especially the army. The UK is caught in a bind: on the one hand it has valuable military assets (well-trained infantry, including the special forces) that any government would want to keep – they buy the UK credibility with the US, and once wound down the institutions that create the talent couldn’t simply be spent back into existence. If it was a matter simply of money, the UK would send its officers to be trained in the Gulf States, not the other way round.

On the other hand, however, Basra and Helmand showed that the UK doesn’t have the logistical clout or the money to field large armies. It has valuable assets, but the only way to realise their value is to offer them to allies, mainly the US, as boutique assets that can be integrated into allies' larger, more capable command structures. The result is that UK taxpayers spend billions training soldiers only for them to be commanded and deployed by American generals who are not accountable to the Defence Secretary nor, ultimately, to Parliament.

The UK special forces are an extreme example of this – they are one of the most attractive items in the UK boutique, and as such ministers are happy to oblige American officers by allowing them to be placed directly under US command, usually in so-called joint task forces. Mark Urban, the excellent defence journalist, has written extensively on this.

The dangers are obvious: 
  1. Loss of political control over military assets that should be accountable to the taxpayers who fund them, and to nation which stands to have its reputation tarnished if they behave criminally.                                                                                                               
  2. The possibility that UK soldiers, acting effectively as mercenaries, will become decoupled from the ethical and legal standards of the UK armed forces, and ‘go native’ in their new surroundings. It’s important not to make an unfair insinuation – the British soldiers in question may have gone rotten without any outside help – but it should be noted that their US counterparts have long stood accused of similar heavy-handedness (to be treated with caution, but this well-researched Intercept article is pretty damning).
  3. More generally, any aggressive military unit stands to become a liability if it is allowed to feel the usual shackles have come off. It is notable that in the Alexander Blackman case, which I discuss here, some attributed Blackman's crime of murdering an injured militant to a failed command structure which left his unit to its own devices.
As much as any government should want to avert these dangers, it might be the case that maintaining the UK armed forces in a ‘complementary’ role, thereby risking the dangers, is the only way to get value out of them. The alternative would be to run down assets which are of value to the country and couldn’t be easily rebuilt. No government elected for five years should seek lightly to strip assets developed over centuries.

It’s difficult to see a good way out of this bind – and difficult to foresee today’s political class possessing the imaginativeness to find a middle way.

Tuesday, 27 June 2017

Expat EU-UK negotiations – update

Some of the matters I touched on in my previous post are discussed, with much fuller legal reasoning, by Martin Howe QC, Francis Hoar and Gunnar Beck in their excellent paper on 'Rights of EU Citizens in the UK after Brexit'.

I also noticed the following in a letter to the Times today by the eminent K P E Lasok QC:
The normal position under English law is that when a person has acquired rights they retain them should the law change (unless there is express provision otherwise). That reflects well-established legal principle and is recognised not just by the common law but also by civil law systems. 
The expectation would therefore be that people who had exercised their EU law rights before Brexit took effect (EU nationals in the UK and UK nationals in other EU countries) would retain their acquired rights after Brexit.
That has the merit of being fair and consistent with legal principle. 
Unless I'm being thick and missing something obvious, wasn't this exactly what Miller was about? In it, the Supreme Court ruled that rights acquired under EU law could be taken away, but only by express parliamentary say-so. Parliament gave its say-so in the Article 50 vote – the expectation that EU and UK nationals should retain their EU-acquired rights was therefore expressly rebutted when Article 50 was triggered according to the proper constitutional process, and completion of the Article 50 process will extinguish those rights. 

Retention of rights for those who would otherwise be left high and dry is desirable and will almost certainly happen – but it will be under the new legal order created by the withdrawal agreement, not under the presumed effect of laws rejected by both Parliament and the electorate.

Monday, 26 June 2017

On EU-UK expat negotiations

Here are some quick thoughts on the offer Theresa May has made to EU citizens who want to remain in the UK after Brexit, and the earlier position put forward by the European Commission. Any deal, it is said, will be reciprocal, but my emphasis here is on the UK side of the deal.

Rights of residency

May’s offer of full rights after five years of residence in the UK seems to meet the demand set out by the European Commission in its position paper. This would keep in place the existing right under EU law. Neither May nor the Commission have said anything about voting rights, and one or two people have foreseen possible disagreement here. It would seem sensible that voting rights remain a separate privilege that comes with citizenship – for various reasons, but in this context because there is a possible advantage in encouraging long-term EU residents to become citizens under UK law alone, rather than remain residents under UK and EU law simultaneously (discussed further below).

Family rights

More difficult. May is purporting to offer long-term EU citizens full rights and a normal life in the UK, but the offer is hollowed of much of its meaning if, in some instances, those things can only be enjoyed at the expense of splitting up a family. That seems a good argument for agreeing to the Commission’s demand that, after Brexit, expats continue to enjoy the EU law right to share UK residency with their immediate family. Unfortunately, the argument against is also fairly strong – as the EU right to bring over family is more generous than the same right under UK law (a UK citizen must pass an earning threshold before their non-EU spouse can join them in the UK), agreeing to the Commission’s position would mean a two-tier legal system with EU expats enjoying greater rights than UK citizens. Aside from being obviously invidious, and probably unfair in a way that need not at all be xenophobic (unless it is xenophobic to say that citizens should have greater civil rights than on-citizens), the main problem is that having different laws for different sets of people creates uncertainty, and unless there is proper justification for the difference it makes the law seem arbitrary, and offends our basic sense of equality before the law.

So I’m not entirely sure how May could meet the Commission’s position in a satisfactory way. The Commission is unlikely to accept an offer to replace EU expats’ family rights with the equivalent UK rights, so that EU spouses would have to meet an earning threshold. The UK is similarly very unlikely to change its own laws to make them equivalent to EU law – it would feel a lot like duress. Could May and Davis, perhaps, offer an extended period within which EU expats could bring family members over under EU law – i.e. a period longer than the five-year residency minimum – and after that the anomaly would end and EU expats would revert to UK family rights?

The other issue regarding family rights is how derived rights will work. Section II of the Commission’s position paper envisages ‘current and future family members’ inheriting the right of residence of EU citizens living in the UK at the time of Brexit. Hopefully the text of the agreement will state unambiguously that the rights created by the agreement can only be inherited once – so, e.g., an EU citizen who at the point of Brexit had lived in the UK for five years or more would enjoy residency rights, and also be able to pass them on to her child, but that child would not be able to pass the same rights on to his children. The second generation, i.e. the original EU citizen’s grandchildren, would then have the option of becoming UK citizens. If the agreement is unclearly worded regarding the inheritability of residency rights, there arises the unappealing prospect of a long-term two-tier legal system, and (if the agreement is to be enforced by the European Court of Justice) the possibility of UK elected ministers being indefinitely liable to the ECJ, even long after Brexit.

Right of return

The wording of the Commission’s position paper implies that the right to permanent residency after five years (as well as the other rights) should apply to ‘EU27 citizens who reside or have resided in the UK at the date of entry into force of the Withdrawal Agreement.’ It is possible that too much shouldn’t be read into this, as the document is a position paper and not a precisely-worded statute – ‘those who have resided’ may be intended to cover the group of people later specified at II(e), i.e. those who have left the UK but should be entitled to return in order to claim an accrued pension. Nevertheless, read literally the wording implies that the Commission wants any EU citizen who has at any point resided in the UK to have the right to return to the UK, even after Brexit, to enjoy ‘grandfathered’ EU rights.

If this is indeed what the Commission is proposing, then I hope May and Davis will resist it as a disproportionate and unreasonable proposition.

  1. The stated political aim of any expats agreement is to prevent disruption to the lives of EU citizens living in the UK, and vice versa. Allowing right of return cannot be a rational means of achieving that aim, because its purpose is not to prevent disruption to lives, but to prevent loss of a life chance (i.e. the opportunity to return at some point in the future). Loss of an opportunity is often unfortunate, but it is not the same as disruption or upheaval – nor is it clear that the UK should take on the extent of liability proposed by the EU merely for the sake of allowing EU citizens who once lived in the UK to keep their options open about a possible return.                                                                                                        
  2. It would be unreasonable to ask UK ministers to agree to this proposition when they cannot know the extent of the liability they would be agreeing to – how many EU citizens have lived in the UK, and how many of them might return? The Commission seems to propose that an indeterminate number of people would be entitled to an expensive range of services, and would possibly be protected by a foreign court with the power to bind UK ministers – it could not be reasonable to assent to such an unclear and uncertain proposal.                                                                                                                                                                     
  3. The Commission, as with all proposals in the position paper, proposes a reciprocal arrangement for UK citizens in the EU. However, the relative liabilities are not at all reciprocal – a large and very populous region openly accepting expats from a much smaller and less populous one, is not equivalent to a small region having to freely accept expats from a much larger and more populous one.                                                                                                                                   
  4. Even if one accepts, as I do, that loss of the right to return to the UK would be inconvenient for those EU citizens who had left the UK with concrete plans to return, and that this inconvenience should be averted by any withdrawal agreement, the Commission’s proposal of an open-ended right of return is an excessive and disproportionate means of averting this inconvenience, when it could effectively be averted by the much more modest ‘grace period’ already proposed by Theresa May. A grace period of two years following the end of the Article 50 negotiations would give those planning a return just under four years to make their decision – it seems reasonable, though not indisputable, to say that that would be a sufficient period of time to keep the door open. It does, however, remain to be seen whether the proposed grace period would apply in this way.                                                                                                                                                                                                                                                         
  5. Finally, the Commission and the EU as a whole must accept that a key purpose of the Brexit negotiation is for the UK to leave the EU’s sovereignty-pooling system, and to regain the elements of national sovereignty it had previously ceded as an EU member. The right of return proposal does not seem consistent with that purpose – it accepts that the UK after Brexit will no longer be part of the EU's shared home for EU citizens, but also insists that anyone who has lived here should retain a key to the house. You don’t really get your house back if an indefinite number of former tenants are allowed to keep copies of the front door key. 

Again, all of the above section will be irrelevant if the EU is in fact not asking for a right of return for its citizens.


The Commission also proposes that the withdrawal agreement be enforced by the European Court of Justice. This would mean that EU citizens in the UK after Brexit would continue to be protected by the same laws, as applied by the same court, as before – it would promote legal certainty. It would also mean, however, that as a matter of international law UK ministers would be treaty-bound to obey the court of a body that the UK no longer benefitted from as a member.

There seem to be grounds for saying the Commission position is over-stated, as one would expect in a negotiation, and not a proposal that could be reasonably agreed to.

  1. There is no reciprocity if the ECJ enforces the rights of EU citizens in the UK, and of UK citizens in the UK.                                                                                                                                                                                                                                                                                
  2. Under articles 221 and 224 of the Treaty of Nice, the ECJ must consist of one judge per member state. The Commission proposal is that the UK accept jurisdiction without representation. It is bold to ask the UK to accept continued ECJ jurisdiction when in all other respects it will be a third-party nation with regards the EU; it is outright unreasonable to ask the UK to accept this jurisdiction in a form that is unfair according to the EU’s own criteria. Continued jurisdiction is controversial enough – continued jurisdiction in an unfairer form is unacceptable.                                                                                                                                                                                                                                 
  3. I note, though I haven’t really researched this yet, that the reason EFTA has its own court, instead of coming under the ECJ, is because the ECJ insisted that anything else would be unlawful: it would have been a violation of the treaties to give EU institutions power of oversight against the non-EU member states of EFTA. So how would it be lawful for the ECJ to have jurisdiction over the UK after its withdrawal? I caveat this: first, there could be any number of reasons why the decision on the EFTA court is irrelevant; second, any withdrawal agreement would presumably be itself an amendment of the treaties, and so would create new provisions allowing the ECJ to have power of oversight over the UK even as a non-member state. Fine, it would be strictly lawful, but only at the cost of sacrificing what seems like a valid principle – it seems entirely right that EU institutions should not have jurisdiction over non-EU member states.                                                                                                                                                                                                                                                          
  4. Finally, the continued jurisdiction of the ECJ would cement in law a two-tier system. It also hints at a principle that says that jurisdiction is not geographical, or based on settled seats of government, but that free-floating citizens carry jurisdiction with them, even to the point of intruding their jurisdiction upon the jurisdiction of the nation states where they live. This feels wrong. Perhaps the EU will argue, as English courts once did about their own jurisdiction, that ECJ jurisdiction should ‘follow the flag’ wherever EU citizens go. But to do so would confirm that the modern EU is as expansionist, and as contemptuous of the sovereignty of foreigners, as the British Empire once was. If it were the case that the citizens in question formed a coherent body of people, united by common cause, then I would be more open to accepting that formed an ‘enclave’ of people to be protected by their own jurisdiction. But they are not. That the Commission thinks the disparate interests of disparate individuals are sufficient to outweigh a nation state’s claims to unitary sovereign jurisdiction gives some flavour of how radically (and, in my opinion, how prematurely) it rejects the sovereignty of nation states.

I conclude by pointing out that the Commission’s insistence on continued ECJ jurisdiction might be fairly easily defeated. First, the position of the EU Council, which determines the general direction of Commission policy and law-making, is notably equivocal on ECJ jurisdiction post-Brexit: it insists that the ECJ rule on disputes still unresolved at the date of Brexit, but says that post-Brexit there should be merely ‘appropriate dispute settlement and enforcement mechanisms’ which ‘bear in mind’ the role of the ECJ. It seems that the Commission perhaps overstated its brief.

Second, the Commission has previously shown imaginativeness in agreeing enforcement mechanisms for trade deals. The Association Agreement between the EU and Ukraine, for instance, provides for an independent arbitral tribunal for the resolution of disputes between the parties (see ch 14 of this 2,135-page monster). It is not idle to hope the EU and UK can agree on a similar middle path – a specially constituted court including both EU and British judges, for instance.