“Distorted and fragmented responsibility”: the role of public law and regulation in ensuring accountability after the Grenfell Tower Inquiry

Seven years since the Grenfell Tower fire in North Kensington, a disaster which brought into devastating focus decades of institutional failings in fire safety and construction standards, and in which 72 people lost their lives, Chair of the Public Inquiry Sir Martin Moore-Bick this month published his 1,700-page report (“the Grenfell Report”) into the tragedy.

The Grenfell Report’s conclusions are utterly damning. The Inquiry did not shy away from apportioning blame. Private firms, public authorities, individuals and key members of government were named amidst a series of findings of “deliberate and sustained strategies to… mislead the market [in relation to the safety of cladding products]”, a “cavalier attitude to regulations affecting fire safety”, “ignoring, delaying or disregarding risk to life” and a “pattern of concealment”.

Warnings that a fire could happen were ignored for years, and recommendations of how to mediate the risks were unheeded. The result was a devastating loss of life and an inquiry which cost £170 million to establish exactly what went wrong and why. At the heart of the Grenfell Report is the inescapable conclusion that what occurred on 14 June 2017 was entirely avoidable. The victims of the fire were badly failed at almost every conceivable level.

With the publishing of the Grenfell Report, attention has turned inevitably to the question of what impact will this have? What lessons will be learnt and acted on to ensure this tragedy is never repeated? In this blog we will consider that question through the prism of public law.

The impact of inquiries

It is well established that there is no legal obligation on the government to accept an Inquiry’s recommendations; and section 38(5) of the Inquiries Act 2005 provides in terms that there is no right to apply for judicial review of the contents of an Inquiry Report. This has led some to assert that public inquiries lack “teeth”, particularly when they are criticising powerful and well-resourced organisations. Indeed, the House of Lords Statutory Inquiries Committee has just published its report, Public inquiries: Enhancing public trust, in part looking at their effectiveness.

In recent years, therefore, Inquiry Chairs have adopted various approaches to bolster accountability and to increase the prospect that the findings and recommendations made will prevent similar tragedies happening again (see, for example, the Infected Blood Inquiry Report, which recommended the introduction of a statutory duty of candour for senior civil servants in their advice to permanent secretaries and ministers).

In turn, it is significant that the Grenfell Report recommended that it “be made a legal requirement for the government to maintain a publicly accessible record of recommendations made by select committees, coroners and public inquiries together with a description of the steps taken in response.” The report goes on to recommend that if the government decides not to accept a recommendation of these bodies, the reasons for that decision should be recorded, and should be reported to Parliament on an annual basis, as it is the legislature’s job to facilitate continued scrutiny of a government’s actions. The hope is this will help to create a comprehensive catalogue of accountability, together with the levers within the system to give real force to recommendations.

The catch, of course, is that this recommendation by the Chair will itself need to be accepted in the first instance by government. If it is, it could create a counterbalance to the discretion given to government when deciding whether to accept and implement inquiry recommendations, some key elements of which we explore further below.

Public Procurement

Responding to the Grenfell Report’s findings in his statement to the House of Commons, the Prime Minister pledged to “write to all companies found by the Inquiry to have been part of these horrific failings as the first step to stopping them being awarded government contracts”.

This was after the cladding firm Arconic and insulation firms Kingspan and Celotex received heavy criticism in the Grenfell Report, their actions described as “very significant” in explaining why Grenfell Tower was clad in highly combustible materials, which led to the fire spreading up through 19 floors in just 12 minutes.

Another finding was that Studio E, an architectural firm, was appointed to the Grenfell Tower project in 2012 without any experience in high-rise residential refurbishments or projects. The Grenfell Report revealed that Studio E underwent no formal or competitive procurement process to win the contract, relying instead on its existing relationship on another linked project.

The suggestion that firms such as these will be barred from winning government contracts is a significant statement from a public procurement perspective. It is however not unprecedented; for example, Jacob Rees-Mogg (Cabinet Office Minister at the time) gave Bain & Company a three-year ban from bidding for government work in light of its role in a major South African corruption scandal.

How bans might operate in practice, against which firms, and for how long is not yet clear. If any ban is too short, reprimanded companies could become eligible to apply for public sector tenders quickly, diluting their punitive impact, and their deterrent to other organisations.

Fundamentally, bans are a form of retrospective punishment rather than a pre-emptive approach to enforcing rigorous standards. With the implementation of the Procurement Act, which is due to ‘overhaul’ public sector procurement, recently pushed back from October 2024 to 2025, questions remain to what extent non-compliant firms can be prevented from accessing public sector contracts in the first instance, to mitigate the risk of avoidable damage, injury, or death.

Governance and Regulations of Fire Safety

The investigations that followed the Grenfell Tower fire have exposed a complex web of regulation, government responsibility and delegation by local authorities to private bodies in respect of fire safety.

At the time of the fire, the Department for Communities and Local Government was responsible for the Building Regulations and statutory guidance, the Department for Business, Energy and Industrial Strategy for regulating products (such as cladding), and the Home Office for fire and rescue services. Control and management of buildings was shared between local authorities (of which, notably, the Royal Borough of Kensington and Chelsea is one of the wealthiest in the country) and approved inspectors which operated as commercial organisations.

This dispersed and fragmented network led to a government-commissioned Independent Review of Building Regulations and Fire Safety (“the Hackitt Review”) which concluded in May 2018. It highlighted serious issues in the approach to fire and building safety, which were compounded by inadequate regulatory oversight and enforcement.

Following the Hackitt Review, the government put forward new Fire Safety and Building Regulations Bills for scrutiny in 2020. Somewhat ironically, progress on the Bills was slow with the Fire Safety Act only being passed in 2021 (and the Fire Safety (England) Regulations following in 2022), while the Building Safety Act did not receive Royal Assent until 2022 and did not come into effect until October 2023.

One of the key reforms recommended as a result of the Hackitt Review was the creation of a new Building Safety Regulator (“BSR”). Given that this new regulatory regime only came into effect between October 2023 and April 2024, however, there has been limited opportunity to assess its effectiveness.

These reforms notwithstanding, the framework of responsibilities for building and fire safety remains complex and operates at various levels across national and local government, as well as in the private sector. The conclusion of the Grenfell Report is that the reforms since 2017, though significant, have not gone far enough and that the regime remains unacceptably fragmented; it recommends the establishment of a single construction regulator, who will be answerable to one government department and to Parliament.

Such a reset could be significant. What is clear is that a piecemeal approach is likely to cause more problems than it solves (see, for example, that which followed the introduction of External Wall Surveys in 2019, with thousands of homes rendered uninsurable and unsaleable). Of course, wholesale reform brings its own challenges. Many of the same parties will still be involved; and the success or failure of the new arrangement will depend in large part on whether adequate funds are made available.

Prosecutions

It is no part of the function of a public inquiry to determine civil or criminal liability. In relation to the Grenfell Tower fire, the Metropolitan Police took the decision – itself the subject of some criticism – to defer criminal investigations until the conclusion of the Inquiry’s work. Following publication of the Grenfell Report, they announced they will spend between 12 and 18 months reviewing the Inquiry’s findings and considering possible charges, including corporate manslaughter, gross negligence manslaughter, fraud, health and safety offences and offences under fire and safety building regulations, perverting the course of justice and misconduct in public office.

Of the raft of offences being contemplated, misconduct in public office is perhaps lesser known.

A common law offence, it can only be tried on indictment and carries a maximum sentence of life imprisonment. The offence concerns serious, wilful abuse or neglect of the power or responsibilities of the public office held by the accused. An important element of the offence, established by the Attorney General’s Reference No 3 of 2003 [2004] EWCA Crim 868, is that a public officer – a term broad enough to cover both elected officials and civil servants – has neglected to perform their duty or committed wilful misconduct to such a degree as to amount to an abuse of the public’s trust in the office holder. Dishonesty is a further core requirement if the offence is to be established, and the Report provides unequivocally that senior public officials were “well aware” of the risks posed by highly flammable cladding but “failed to act” on what they knew, and instead continued to drive for slashed regulations, disregarding coronial recommendations made in the wake of earlier tragedies (such as the cladding fire at Lakanal House in 2013) to tighten up fire safety.

The threshold to prosecute under this offence is extremely high. Prosecutors must carefully consider whether the conduct complained of constituted such a serious abuse of public trust as to create an affront to the standing of the public office held, and to warrant criminal punishment. However, given the damning conclusions reached in the Report, if it is not made out in the circumstances of the Grenfell Tower fire, it might seriously be asked whether it continues to serve any proper purposes in holding to account public officials responsible for serious wrongdoing in office.

In conducting their investigations, the Metropolitan Police will, of course, be able to take account of the Inquiry’s findings, but will need ultimately to decide for themselves whether there is sufficient evidence, to satisfy the criminal standard of proof, and justify charges being brought. If any such charges are laid, trials are not expected to start until 2027, and with substantial backlogs in the system, justice in the criminal courts could still be a long way off. This is a significant blow to the bereaved families and loved ones of victims of the fire in their search for accountability.

Intersectionality

The week following publication of the Grenfell Report saw what would have been the 50th birthday of Stephen Lawrence. The public inquiry into his murder chaired by Sir William Macpherson, and its report published in 1999, introduced to many the concept of institutional racism. It recommended that if a victim of a crime considered it to be racially motivated, it was to be treated as such, unless and until it was shown otherwise.

Eighteen years later, when the Grenfell Inquiry was established, calls were made for it to consider the events that led to the Grenfell fire disaster through the prisms of race and class. The Grenfell Report however concluded that whilst the desire to do so flowed “from the undeniable fact that a significantly disproportionate number of those who died in the fire and of those who survived the fire but whose homes were destroyed were from ethnic minorities or socially disadvantaged”, the Inquiry saw “no evidence that any of the decisions that resulted in the creation of a dangerous building or the calamitous spread of fire were affected by racial or social prejudice.” Examining social housing policy, and whether this had been a reason for residents being allocated flats in unsafe housing was judged to be beyond the scope of the Inquiry’s Terms of Reference.

Commentary on the Grenfell disaster has consistently pointed to the fact that race and poverty must be inextricably linked to learnings from the tragedy, given the disproportionate allocation of people from ethnic minority backgrounds to social housing in high-rise buildings. Arguably therefore it was open to the Grenfell Inquiry to take a “Macpherson-like” approach and identify a presumption – albeit a rebuttable one – that race and poverty were causal factors in the fire. The decision of the Inquiry to leave structural racism out of its considerations is considered by many to be a serious failing and raises questions as to the proper place for this kind of scrutiny, if not by a public inquiry.

Reflections

Volume 6 of the Grenfell Report details the harrowing circumstances of the deaths of the 72 victims. Justice for those who lost their lives must remain the paramount consideration as the government considers its response to the Inquiry, the Report and its recommendations.

The aftershocks of what happened at Grenfell Tower are likely to be felt for many years to come. Regrettable though that is, it is also appropriate if we are to ensure the circumstances which led to the disaster are not allowed to re-occur.

Public law has its place in keeping these issues front of mind, through robust oversight of a changing regulatory landscape, scrutinising standards of public sector procurement for key contracts around housebuilding and material supply and holding to account officials in their delivery of public services. Through this approach can we hope to address some of the societal inequalities that persist throughout this country, and which mean that those in social housing, who are typically underrepresented in public office, too often face the devastating consequences of decisions in which they play no part.