Human Rights and State Accountability for Fire Safety in Blocks of Flats

On the second anniversary of the Grenfell Tower fire we are revisiting a topic touched on by Susan Bright in an earlier blogpost almost one year ago, namely, whether public law, in particular, human rights law, can be used to enable those living in blocks of flats with unsafe cladding and other serious fire-safety defects to get the cladding replaced. It is surprising, and shocking, that two years on there may be as many as 200,000 people still living in unsafe blocks, and that the scale of the problem is still not fully known.

The government’s recent paper on reform of the building safety system acknowledges that the Grenfell fire itself “represents the greatest loss of life in a residential fire in a century. It shattered the lives of many people and shook the trust of countless more in a system that was intended to ensure the most basic human need of having a decent and safe place to live.” This failure to have a safe place to live engages one of the most fundamental provisions of the European Convention on Human Rights (ECHR), the “right to life” contained in Article 2. But other human rights are also affected: the Article 8 right to respect for family life, and the home; and potentially also the Article 3 right to not be subjected to inhuman or degrading treatment, and the Article 1 Protocol No. 1 (A1P1) right to peaceful enjoyment of possessions. Human rights were in the past thought of as focussed upon what is called a “negative duty”, essentially a duty not to interfere (for example, the state should not evict you from your home without good reason). It is recognised, however, that each of the Convention Rights being considered here also entails positive duties, that is, they may impose an obligation on the state to do something and, in particular, when it comes to Article 2 this includes an obligation to protect life.

The victims of the Grenfell Tower fire were, as the Chair of the Equality and Human Rights Commission, David Isaac, notes, “tragically let down by public bodies that had a duty to protect them.” This is a violation of their human rights and the blame ultimately “lies with the authorities”. Establishing violations of the Convention rights for occupiers in other buildings which are now known to have serious fire-safety defects, yet where there has been no tragedy, requires us to look at issues a little differently. This post considers the position of the many thousands of occupiers still living in non-remediated, unsafe high-rise buildings. A much fuller, and more nuanced, version of our argument is contained in our Paper that is available here; what follows outlines some of the key threads to the argument.

The Convention Rights

Although the fire-safety and cladding scandal engages Articles 2, 3, and 8 and A1P1, the strongest claim is probably based around Article 2. The duty to protect life does not solely concern deaths resulting from the use of force by agents of the state but includes a positive substantive obligation on states to take appropriate steps to safeguard the lives of those within their jurisdiction. There are two angles to this. First, there is a “big picture” general duty with a focus on the state’s obligation as overseer under which the state must institute and maintain an effective system of deterrence against the threat to life. Secondly, there is an “operational” duty which can require public bodies to take preventive measures where there is a known and specific risk.

The big picture duty focusses on the “system”, the overall regulatory framework. Our argument is that this is engaged in the fire-safety context where the state has assumed responsibility by creating the system affecting construction and fire health and safety through the Building Regulations, and the building control inspection system. Further, it is clear that there has been a catastrophic systemic failure. As Dame Judith Hackitt scathingly concluded in May 2018:

The current system of building regulations and fire safety is not fit for purpose and … a culture change is required to support the delivery of buildings that are safe, both now and in the future. The system failure identified in the interim report has allowed a culture of indifference to perpetuate.

The operational element of the duty requires authorities to take preventive operational measures to protect an individual or group whose life is at risk. This can require some very practical measures to be taken, but must not “impose an impossible or disproportionate burden on the authorities.” In the fire-safety context, there are hundreds (and potentially thousands) of buildings that are unsafe and trigger the operational duty, that is, they present a “real and immediate risk” of loss of life. The various mitigating measures that have been introduced once the risk has become known include moving to an “evacuate immediately” policy, ensuring signage is correct, fire equipment is functioning, etc. The main measure, however, is to require fire marshals to patrol buildings 24/7, the so-called waking watch. But these measures are untested and many commentators do not think that they will be effective, particularly if a fire breaks out at night.

Article 8 adds to the analysis by providing a framework for taking account of the broader impacts of fire safety on the lives of those anxious about their personal safety and financial security. These are the personal impacts illustrated in many media stories. The toll on leaseholders living in these blocks is stark. Not only do they live in worry and fear about fire and whether they can escape, but they are also frightened of the financial impact, as they face bills running into five figures. A recent mental health survey has reported “a deeply worrying trend of depression, anxiety and suicidal thoughts, as flammable cladding remains attached to their buildings”, with 65.8% of leaseholders’ mental health being “hugely affected”.

Making Rights Real

Turning an alleged violation of human rights into a justiciable claim is not straightforward, even though individuals living in unsafe blocks should easily cross the threshold of having to show that they are victims under the Human Rights Act 1998 and ECHR. Many reported cases concerning Article 2 follow events or tragedies that have already occurred, and which caused serious physical harm. When lives have been lost, courts can more easily identify specific harm and establish a causal link between the harm sustained and the alleged failure. This can lead to damages and is, perhaps, more apt for those who were victims of the Grenfell Tower fire.

For those living in non-remediated blocks, there are two possible avenues of redress. One is to try to get the government to rethink its response to the difficulties in remediation. The recent announcement of funding for remediation in ACM blocks is too narrow in both scope and amount to address all of the emerging-fire safety issues. As such, the argument is it does not go far enough to meet the Article 2 obligation to protect life. Another avenue is to argue that more needs to be done at particular sites in order to meet the operational duty. Given that the National Fire Chiefs Council guidance notes that the mitigating measures must only be temporary, this effectively means that there must be remediation.

The two most important objectives for leaseholders will be: to make the property safe (which is important for all occupiers, not only leaseholders), and to avoid having to pay the cost of remediation works and interim measures. For all of those living in non-ACM blocks or with mixed ACM and other defects, the government funding announcements will do nothing either to make them safe or save them from massive costs. For these people, bringing a claim arguing that there is an ongoing breach of the operative duty or using the policy announcement as a trigger event for a human rights challenge may require the government to rethink. But what it has to rethink is how to protect life and to respect private and family life. Given that the only feasible way forward the government saw in relation to ACM buildings was to provide a fund for remediation, it may be that a similar route has to be provided for other fire-safety defects.

There is an urgent need for all buildings to be made safe. This is powerfully pointed out in a video #demandchange produced by Grenfell United, shining a spotlight on unsafe tower blocks: two years on, people are living in dangerous homes, homes wrapped in combustible cladding, homes with no sprinklers and fire doors not fit for purpose. But unless the government is held to account, it is hard to see how this will change. Change should not follow tragedy; change should preclude tragedy.

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How to cite this blog post (Harvard style) 

Bright, S. and Maxwell, D. (2019). Human Rights and State Accountability for Fire Safety in Blocks of Flats. Available at: https://www.law.ox.ac.uk/housing-after-grenfell/blog/2019/06/human-rights-and-state-accountability-fire-safety-blocks-flats (Accessed [date]).