Tuesday, 4 July 2017

Grenfell Tower: What lends legitimacy?

Legitimacy, most formally defined, means in accordance with the law but another and equally valid meaning is having the quality of acceptance.  The furore that has surrounded the appointment of Sir Martin Moore-Bick has exposed a tension between those two definitions.

On the one hand here is the recently retired Vice President of the Civil Division of the Court of Appeal.  Barrister since 1969, QC since 1986, Recorder since 1990, High Court judge since 1995, Lord Justice of Appeal since 2005.  Legal and judicial careers can be more glittering and exalted, but not much more.  Being a criminal practitioner I never appeared in front of him but from what I have read his decades of experience in commercial cases would make him ideally suited to the forensic disentangling of the contractual threads that led to the Grenfell Tower tragedy.

On the other hand here is a posh old white man, educated at The Skinner's School, Tunbridge Wells and Christ's College, Cambridge about whom the only thing non-lawyers have heard is that he upheld a decision permitting Westminster Council to offer a tenant that had been evicted housing 50 miles away without disclosing what local alternatives were available.  The Supreme Court reversed his ruling.  What can this man know of the pain, anguish and fears of the bereaved, homeless and dispossessed of  Grenfell Tower?  How committed can he be to exposing what caused this to happen and who is to blame?

No sooner has he been appointed there are calls from some quarters for his resignation, including from the newly elected Labour MP for Kensington in whose constituency Grenfell Tower stands: still bearing its victims unknown and perhaps unknowable.  The (new) Lord Chancellor has leapt to his defence and rightly so.  But of course he was appointed by the Prime Minister so the Lord Chancellor loses no political capital in defending the appointment.  Any allegation that Sir Martin will not faithfully and lawfully discharge his duties in chairing the inquiry should be evidenced not bandied about by those who should know better.  

When the criticism being levelled is that you hail from the establishment being defended by the establishment affords you no defence.  In a very real sense however this criticism is absurd.  Inquiries are what judges do.  They are what judges are trained for and experienced in.  To complain that the chair of the inquiry is a judge would be as ridiculous as complaining that the heroic firefighters who gallantly and selflessly fought the blaze had a background in putting out fires.

What the critics are really saying though is that the outcome of the inquiry may lack legitimacy if the chair is from 'them' not from 'us'.  But where would a chair from 'us' come from?  It is hard to imagine that a single member of the Court of Appeal grew up in a Grenfell Tower, or ever did.  What this terrible fire and its inquiry may be exposing is that the male, pale and stale complaint is not just a manifestation of special pleading but the articulation of a legitimate anxiety that if judges don't look and sound like the people they serve there is a danger their service will not be acknowledged or, more dangerously yet, accepted.

Inquiries have not had a good time of recent.  The history of Hillsborough is the springboard.  There is the £190 million cost of the Saville Inquiry.  There is the 7 years it took the Iraq Inquiry to reach publication.  There is the extraordinary turnover of leadership of the Child Sexual Abuse Inquiry.  It would be unconscionable for the Grenfell Tower Inquiry to go awry before it has even started.

There is a solution to anxieties about the creation of a representative judiciary and that is proper funding of legal aid.  If judges are to be drawn from all quarters of society then legal careers need to be open to all quarters.  That means enabling the impecunious able to come to law in the first place and ensuring that they can make a living from it.

Meanwhile those that criticise Sir Martin Moore-Bick's appointment would do well to have their evidence to hand and good explanation for their preferred candidate.  It is a cornerstone of our justice system that all evidence is considered before judgement is cast.

4 comments:

  1. I read the case you mentioned, and I found it disturbing that the judge did not even consider the human rights dimension of the case, and just applied the Wednesbury standard of review. It was like reading a case from the 1960s.

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    1. I haven't read the case but judges tend to reach their findings on the basis of the case that was put rather than the case which might have been put. Did the SC allow the appeal on the basis of the human rights points having been ignored or dismissed?

      Earlier in the year, I went to one of the events organised to provide information about the latest recruitment round for Recorder. One of the speakers was Cheema-Grubb J (coincidentally, being an Asian woman, having grown up above a corner shop and gone to a very rough inner city comprehensive in Leeds, probably near the definition of the ideal identity for a judge to lead future similar inquiries in some people's minds!). Interestingly she said that one of the biggest and most difficult changes in professional approach she had to contend with on starting as a Recorder was to stop assessing the cases in front of her on the basis of the legal arguments and approaches to evidence she would have taken as Counsel and to do so on the basis of those which were actually being put.

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  2. Good point. Lady Hale does mention the applicability of Section 11 of the Children Act and the duty for the Children Act to be interpreted consistenly with the UK's international obligations under the Convention on the Rights of the Child, even if she leaves that point undiscussed. The Children Act is not referred to by Judge Moore-Bick, let alone the Conventions on the Rights of the Child. The word 'children' is mentioned 5 times in the judgment, in the introduction and in reporting the reviewing officer's decision. The judge does not refer to them in any point of his decision. This is a judge that does not seem to understand the HR implications of public authorities' acts.

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  3. Have you seen the 12 demands sent to the PM by a survivors' group (https://www.theguardian.com/uk-news/2017/jul/03/grenfell-survivors-issue-12-demands-to-pm-to-overhaul-response-to-tragedy)? They do ask that Moore-Bick is replaced, but not because of his background; rather because of his comment 'that [his inquiry] will be restricted to issues relating to how the fire started and spread rather than examining wider issues about Grenfell Tower, the council, central government and the management and funding of social housing'. They also ask that the judge leading the inquiry has a 'properly diverse' expert panel which should enable a width of view which might otherwise be unachievable. It would be good to find a judge with a track record of humane judgments with regard to public authorities, especially one who is up to date with international conventions, as Alessandra has pointed out the lack of this in Moore-Bick's Westminster judgment.

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