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.

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