There’s been some concern about Theresa May’s choice of Sir Martin Moore-Bick as the Judge to lead the Grenfell fire inquiry, in addition to the narrow terms of reference set for the inquiry itself.

Publicity has focused on a controversial judgment of Moore-Bick’s involving the City of Westminster Council’s decision to offer out-of-borough accommodation to a homeless mother of 5 children.

I wrote about this case (called Nzolameso v City of Westminster [2015] UKSC 22) in some detail previously (Supreme Court rules on ‘social cleansing’ case).

It’s true that he (and two other Judges of the Court of Appeal) got it wrong in Nzolameso.

It’s also true that the decision was overturned by the Supreme Court.

But in law there’s often a big difference between getting it wrong and failing to be a fair, impartial and independent decision-maker.

The challenge in the Supreme Court was not based on any of the Judges below having acted unfairly or having fallen below the high standards required of them.

Nzolameso was path-breaking. It was the first (and only) case to consider the relevance of the duty on local authorities to safeguard and promote the welfare of children government duties under section 11(2) of the Children Act 2004 when offering accommodation to homeless families.

Until the Supreme Court cleared this up, there was uncertainty about the relevance of this duty. Indeed, the arguments in the Court of Appeal don’t appear to have covered it at all (which suggests it was raised for the first time at the Supreme Court level).

It’s tempting, in divisive times, to label Judges according to their perceived sympathies (as “pro” or “anti-tenant”). The reality is almost always more nuanced.

Though Moore-Bick dismissed the appeal of a vulnerable mother in Nzolameso, the judgment was far from a rubber-stamping of local government decisions to send families out-of-borough.

As he wrote at § 20 of his judgment:

the court should be astute to ensure that local housing authorities give proper consideration to their duty [to secure accommodation in their local area] and do not merely apply policies which lead to accommodation being provided outside their own districts in a routine and unthinking manner. 

A Judge seen as “pro-tenant” may have been welcomed with more enthusiasm as the chair of this inquiry. That does not mean that they would do a better job at delivering the justice that this horrendous tragedy so urgently demands.

Moore-Bick’s early engagement with persons affected should be welcomed, but there is clearly much difficult work ahead in this inquiry and any others which will follow it.

Posted by Ben Amunwa

Founder and editor of Ben is a commercial and public law barrister with The 36 Group. He gives expert legal advice on employment, public law and commercial disputes to a wide range of clients.

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