The Grenfell Tower Inquiry: observations so far

It is impossible not to be deeply moved by the stories of lives abruptly cut short. These accounts play a vital, humanising role by placing those who died in context, which should mean that the investigation is always brought back to focus on the people at the heart of the process.

From a procedural perspective, the concept of opening with pen portraits was initiated at the Hillsborough inquests, but was much more limited at those hearings, and there are emerging accounts of inquests elsewhere adopting a similar approach, which is to be welcomed.

While it is impossible to pinpoint the impact of this new approach, it is interesting that the report is not as dispassionate and legalistic as it might have been. In discussing those opening hearings, for example, the report briefly describes the residents of the tower:

No one who was present at the commemoration hearings or who read or heard their evidence to the Inquiry could fail to be impressed by their courage, their resilience and their regard for their neighbours. Together they formed a vibrant community with a strong sense of identity and considerable social cohesion (volume 1, page 20).

Similarly, elsewhere the language in the report is not as distant and reserved as it could have been. Despite seeing the video evidence many times, for example, Sir Martin states:

I still find the speed at which the fire took hold of the building … profoundly shocking … to any onlooker those first few minutes must have been truly terrifying. It is not surprising that there were desperate shouts from the crowd... (para 23.48).

However, this is not to suggest that the report is not also a very technical document grounded in expertise. For example, the report examines in detail the possible ways in which the fire escaped from the flat in which it started into the cladding. The report concludes provisionally that the fire moved through the materials which made up the side of the window and the wall around it. The conclusion is devastating: a fire of this type was inevitable and foreseeable, and it was disproportionately likely it would get into the cladding.

The conclusion is critical from a fire-risk assessment perspective. The only way you could identify fire risk of this kind would be what is known as a Type 4 destructive fire risk assessment. It re-emphasises the wider context: that it is not cladding alone which needs to be the focus of national attention. While aspects of the fire are described as unique (notably the ‘rapid horizontal and downward spread of flame’ (para 23.25)), which the report concludes was a result of the particular architectural crown on the building, the failure of compartmentation does not relate specifically to the uniqueness of the cladding system.

Though headlines on the wider implications of the report focused on the London Fire Brigade (LFB) – not least the questions raised about the adequacy of the LFB – these structural aspects of the investigation are vital. As with the Lakanal House fire in 2009, failures of the fire service are closely entwined with problems with the fabric of the tower block, as a building which fails to keep a fire boxed into one compartment to give time for other residents to escape cannot keep the occupants of that building safe. The cladding at Grenfell Tower was critical in that spread, and another interesting aspect of the Phase 1 report was Sir Martin’s willingness to conclude that it breached building regulations.

While the criticism of the fire service and the report’s recommendations caught most media attention, it is the findings on the building and refurbishment which are of particular interest in terms of the likely development of the next phase. The report states:

Although it was not originally my intention to reach conclusions in Phase 1 about the tower’s compliance with the Building Regulations, I can see no good reason why that question should not be determined now so far as it relates to the external facade. I accept that the construction of the Building Regulations is ultimately a question of law and there is compelling evidence that requirement B4(1) was not met in this case. It would be an affront to common sense to hold otherwise (para 26.4).

The decision to reach this conclusion is intriguing. The report goes on to note that no core participant had put forward ‘a reasoned argument to the effect that the exterior walls of the building complied with [the regulations]’ (para 26.6). The conclusion chimes with a general theme which emerges in the report: a willingness to critique the approach of core participants involved in the circumstances which led up to the fire. These include, for example, on the part of Whirlpool (which claimed the fire could have started from a lit cigarette instead of in one of its fridge-freezers) failures to produce any expert evidence to back up claims that the report described as ‘fanciful’ (para 21.26). Similarly, despite clear expert evidence on the influence of the architectural crown, representatives from companies involved in the refurbishment of the tower block (ie, Rydon, Arconic and Celotex) argued that it was too early to reach a decision, but found themselves overruled by Sir Martin.

The result of these findings is that, in Phase 2, the inquiry will focus on ‘how those responsible for the design and construction of the cladding system and the work associated with it, such as the replacement of the windows and infill panels, satisfied themselves that on completion of the work the building would meet [the regulations]’ (para 26.7). The impact is to place a heavy responsibility on these organisations to explain themselves. This makes it likely that much of the contestation in Phase 2 will be between those companies seeking to exculpate themselves and place responsibility elsewhere, including on the government itself.

In this respect, another pointer for Phase 2 is the emphasis in the Phase 1 report given to the Lakanal House fire, which receives an entire chapter to itself and is described as ‘an important aspect of the background to the Grenfell Tower fire’ (see paras 8.1–8.8 and para 2.9). The reason Lakanal House fire is of particular importance is that many of the issues raised in the coroner’s reports to prevent future deaths appear to have echoes in what happened at Grenfell Tower. For example, the coroner into the six deaths at Lakanal House wrote to Eric Pickles, the then Secretary of State for Communities and Local Government, setting out aspects of the case which needed reflection in order to prevent future deaths, including concerns about the lack of clarity of building regulations.⁷ The short, dismissive response from the then Department for Communities and Local Government (DCLG) indicated that a review of building regulations would be undertaken, but this did not happen before the Grenfell Tower fire.⁸ This is important as it is likely that a key line of defence from those involved in the refurbishment of the tower block will be focused on criticism of the regulations themselves as the inquiry considers whether:

… the regime for testing materials, and the regulations governing their use were, and are, adequate to identify and control the potential dangers from downward and horizontal as well as vertical flame spread. [The inquiry] shall also examine what was and should have been known, both by those in the construction industry and by those in central government responsible for setting fire safety standards, about the particular dangers posed by thermoplastic polymers (para 23.61).

In this respect, it will be interesting to see who is called to give evidence in Phase 2; many will want to hear from key ministers, including Eric Pickles a former DCLG secretary of state, but also former housing ministers, including Gavin Barwell and Brandon Lewis.⁹ As this evidence emerges, it will be crucial to keep focus on a critical issue: the warnings of potential fire hazards given by the local community and the lacuna which meant there was an effective absence of any means to raise those concerns in a legal forum.

Inquiries, the therapeutic perspective and accountability

This failure to hear the voices of those trying to raise the alarm at Grenfell Tower invokes a wider set of questions about the ways in which the legal system is capable of hearing the ‘view from below’.¹⁰ One instance of this relates specifically to public inquiries and inquests, which have been heavily critiqued for decades for failing properly to hear the voices of bereaved families (see, for example, the extensive work of academic Phil Scraton in this respect).¹¹

Recent debates have queried whether the law should be amended to introduce a therapeutic perspective and better take into account the interests of victims, their families and survivors. Importantly, advocates of therapeutic approaches emphasise the limited nature of this perspective and the need to focus on minimising harm to the bereaved, and avoid adopting a paternalist approach which risks deploying a therapeutic framing to close down possibilities of accountability for the bereaved.¹²

The concern is that framing the hearing as a site of therapy can result in an emphasis on giving ‘closure’ to the bereaved, with a perception that grief is a set process to work through.¹³ This is a perspective which philosopher Judith Butler characterises as invoking ‘the Protestant ethic when it comes to loss’.¹⁴

It can also lead to an emphasis on the protection of the bereaved from issues which could be perceived to cause further distress, possibly well intentioned, but in practice undermining therapeutic engagements with the law. An example of this is given in the account of Pamela Dix, who describes the additional distress caused by authorities which denied access to the remains of those who died in the Lockerbie bombing in 21 December 1988.¹⁵

Much of getting this right relies on cultural, structural and institutional factors rather than the narrower legal issues; however, one broad area in which normative legal reform could dramatically improve the position of the bereaved and survivors relates to the ability of the hearings to achieve accountability, ie, the ability for investigations to call those in power to account, and to reveal, explain and justify their actions.

In this regard, it is increasingly clear that higher legal standards compelling disclosure and truthfulness are required, and that the Public Authority (Accountability) (PA(A)) Bill needs to be passed by parliament.¹⁶ This bill, produced by lawyers and families after the Hillsborough inquests, was introduced as a Private Members Bill by Andy Burnham in March 2017.

The bill requires that public authorities and public servants and officials have a duty, at all times, to act within their powers: (a) in the public interest; and (b) with transparency, candour and frankness. More specifically, they have an enforceable duty to assist investigations and inquiries, including – amongst other things – a responsibility to act with proper expedition and make full disclosure of relevant documents, materials and facts.