In the last weeks of 2018, a year and six months after the fire, the final closing submissions of the first phase of the Grenfell Tower Inquiry were heard. At this stage, the Inquiry is focused on what happened on the night of 14 June 2017. In order to work that out, the first six months of hearings were devoted to commemorations from the relatives of those who died in the fire; detailed evidence from expert witnesses, firefighters and individuals who had been bereaved, who had themselves survived the fire or who lived locally to the Tower; and opening and closing submissions from core participants. The second phase of the Inquiry, which is expected to begin in January 2020, will interrogate why the fire happened and seek to identify who was responsible. The Inquiry will publish its phase one conclusions – the official version of events – in October.
In September 2017, long before the Inquiry opened, the Equality and Human Rights Commission applied to become a core participant. That application was refused. Accordingly, in December 2017, the Commission launched an independent, parallel project: Following Grenfell. The project’s aim and focus – quite different to that of the Inquiry – is to analyse the tragedy specifically through an equality and human rights framework and thereby both assist the Inquiry in properly identifying and understanding the relevant human rights obligations and inform the wider public about these aspects of the tragedy. As part of Following Grenfell, the Commission has published research reports, legal submissions and briefing documents that are focused on seven key issues engaged by the fire: (1) the right to life; (2) the duty to investigate death; (3) the right to freedom from inhuman and degrading treatment; (4) the duty to provide adequate housing; (5) the right to access to justice; (6) the rights of children; (7) the duty not to discriminate. The Commission’s publications are the result of both legal analysis and direct engagement with the community affected by the fire.
The significance of Following Grenfell is threefold. First, and most importantly, it responds to a pressing need. Soon after the fire, the UN Special Rapporteur on the Right to Housing, Leilani Farha, highlighted the importance of the Inquiry considering the nature of the human rights obligations on different levels of government engaged by the tragedy. Doing so allows examination of whether national laws satisfied – and continue to satisfy – the UK’s international and domestic human rights obligations. And such examination – and findings on these issues – will contribute to improving protections both domestically and internationally. Second, without the Commission addressing these issues of its own motion, such matters are not otherwise specifically on the Inquiry’s agenda. The Commission’s position – distinct from any individual participant – allows it to comprehensively consider the applicable human rights framework and guide the Inquiry through it and its relevance to all core participants. And third, as one of the National Human Rights Institutions of the UK and with a statutory responsibility to promote the awareness, understanding and protection of human rights, the Commission is uniquely placed to provide authoritative guidance to the Inquiry and the public.
The Commission’s most substantial Following Grenfell publication is the submission it made to the Inquiry at the close of phase one. This followed extensive review of the publicly available oral and written evidence, and a number of key external reports and documents. It was drafted by the Commission legal team and a team of four counsel (Karon Monaghan QC, the authors of this article and Michael Etienne) and was published in January 2019. We summarise our main findings below.
The EHRC’s main findings
The primary focus was consideration of whether the State had sufficiently protected the right to life (as guaranteed by Article 2 of the European Convention on Human Rights) of the residents of Grenfell Tower.
From the evidence before the Inquiry, the Commission noted that the State had been informed that Grenfell Tower’s cladding was unsafe prior to the fire. Following fires in other high-rise residential buildings in 1999, 2005, 2009 and 2010, coroners and government committees had recommended improvements to fire safety in relation to external cladding. This culminated in March 2013, when the Assistant Deputy Coroner wrote to the government stating that ‘action should be taken to prevent the occurrence or continuation of such circumstances’; and in May 2017, when the London Fire Brigade warned of the risk of external spread of fire on high-rise buildings faced with panels.
Despite these warnings, firefighters were not trained on how to tackle a cladding fire, and the regulatory framework failed to prohibit (or at least to clearly prohibit) the use of highly combustible external cladding. Dame Judith Hackitt – Chair of the Independent Review of Building Regulations and Fire Safety – concluded that the regulations were ‘not fit for purpose’, that there were ‘deep flaws in the current system’, and that the framework required ‘a radical rethink’. Her conclusions were echoed in a number of other independent reports and by some of the experts to the Inquiry. The Fire Brigades Union noted that – either despite or in compliance with the applicable regulations – Grenfell’s refurbishment in 2011-2016 had rendered it a ‘highly combustible death trap’.
It was clear from evidence before the Inquiry that residents had not been told of the grave risks that the Tower – and the inadequate regulatory framework – posed. A number of tenants had made specific complaints about the building’s refurbishment and fire risk. But those concerns were not adequately escalated or responded to. Dame Judith noted that the provision of information to residents with regard to fire risk and fire safety was ‘highly variable and often non-existent’, and the evidence of firefighters made clear that fire safety information was not routinely delivered to residents and was not made available in languages other than English.
As a result of these matters (and others), the Commission concluded that the State had violated Article 2 in a variety of ways, which included failing to put in place (or effectively enforce) an adequate legal framework. Although the government has since amended the applicable regulations to ban the use of combustible materials in relation to certain parts of certain buildings, the Commission considered the State to be in continuing breach of its obligations under Article 2 in circumstances where the new ban is insufficiently broad (it only applies to a limited class of buildings, over 18m in height) and where the now banned cladding is yet to be replaced on a number of buildings in the UK.
Alongside the right to life, the submission addressed the right to adequate and safe housing, the right to access to justice, children’s rights and the right to equality and non-discrimination. Evidence before the Inquiry showed that the State had housed wheelchair users, elderly, disabled and other vulnerable persons on the top floors of the Tower. Once the lifts failed, as they did during the fire, it became impossible for many of these residents to leave the Tower. But their rescue was not duly prioritised during operations on the night of 14 June. In the Commission’s view, this (and other matters) demonstrated that the State wrongly overlooked the needs and safety of these residents and therefore violated their right to life and right to adequate housing and failed to meet its equality and non-discrimination obligations.
As a result of these conclusions, among others, the Commission recommended that the State: (1) take further action to protect lives by immediately removing combustible cladding from the hundreds of buildings where that work remains outstanding; (2) implement training for firefighters on combatting cladding fires; (3) reconsider the application of, or alternatives to, the ‘stay put’ policy for buildings with similar cladding combinations to Grenfell Tower, and implement firefighter training on this issue; (4) ensure that residents are provided with sufficient fire safety advice; (5) put in place additional protective measures to meet the needs of vulnerable persons, particularly in relation to evacuation policies and housing allocation; and, (6) improve the means for survivors, bereaved families and others affected by the fire to participate in the Inquiry.
The Commission has called for the Inquiry to address these issues urgently, rather than wait until the conclusion of phase two of the Inquiry. It remains to be seen to what extent, if at all, this will be done.
Isabel Buchanan is a barrister at Blackstone Chambers, where she has a broad civil law practice focusing on public law and human rights. She is author of Trials: On Death Row in Pakistan (Jonathan Cape: 2016).
Jason Pobjoy is a barrister at Blackstone Chambers with particular expertise in EU & competition law, public and human rights law, commercial law, public international law, and sanctions law. In 2018 Jason won the WorldECR’s young practitioner of the year award.