Susan Bright is a Professor of Land Law at the University of Oxford and McGregor Fellow of New College. Douglas Maxwell completed a PhD at Cambridge University and is currently a Pupil Barrister in London.

Introduction

In 2019, we argued that the ongoing cladding crisis constituted a breach of the UK’s positive obligations to preserve life under Article 2 of the European Convention on Human Rights (ECHR). Since then, the scale of the problem has escalated and been thrust into the public consciousness. There are two broad categories of fire safety defects, often both present: combustible external wall systems and balconies, and defective cavity barriers and failed compartmentation. Although both reflect a failed regulatory system, this post focuses on combustible materials.

The Grenfell Tower Inquiry and investigative journalism have reinforced the earlier description, in the 2018 Hackitt Review of Building Regulations and Fire Safety, of a regulatory system “not fit for purpose”. As will be seen below, there were multiple warnings. Yet even following the Grenfell Tower fire, the State has failed to put in place a system that ensures that all buildings are safe: the funding currently available is insufficient to remediate all unsafe buildings, and without further support, many buildings will not be fixed.

Grenfell
While many buildings have been remediated, the number of buildings in which fire safety defects are identified continue to grow.

© Copyright Glyn Baker and licensed for reuse under this Creative Commons Licence.

The Right to Life

Article 2 is one of the most fundamental provisions of the ECHR, providing that “everyone’s right to life shall be protected by law”. Article 2 lays down a positive obligation on state authorities (the “safeguarding obligation”), to take appropriate steps to safeguard the lives of those within its jurisdiction. This entails a duty (the “framework duty”) to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life.  Further, Article 2 may entail a positive duty (the “operational duty”) to impose particular practical measures to ensure effective protection where lives are at risk.

Is Article 2 engaged?

Article 2 can be engaged (“triggered”) in the context of any activity, whether public or not, in which the right to life may be at stake (Öneryildiz v Turkey [71]) and may arise from a failure to regulate private industry (Fadeyeva v Russia [89]). In R (Richards) v Environment Agency, Fordham J set out a two-stage approach:

  1. is there is a real and immediate risk to the right to life, which is significant and substantial, present and continuing; and
  2. did the state authority know or ought to know of that risk?
Real and Immediate Risk

A ‘real’ risk is one which is ‘significant and substantial’ (as opposed to ‘remote and fanciful’). An immediate risk is one which is ‘present and continuing’ and need not be ‘imminent’ (see R (Richards) v Environment Agency [43] and Rabone v Pennine Care NHS Trust [39]). Fires that have occurred since the Grenfell Tower fire, such as the Barking fire and the fire at the Cube, Bolton,  show the risks are both real and immediate.

Knew or Ought to Have Known

The available evidence demonstrates that it cannot be plausibly argued that the risk posed by combustible cladding was not previously known. A parliamentary report following the 1999 Garnock Court fire in Scotland recommended that ‘all external cladding systems should be required either to be entirely non-combustible, or to be proven through full-scale testing not to pose an unacceptable level of risk in terms of fire spread’. The BBC recently reported on leaked test results commissioned by the then Labour government in 2004. They were carried out on five cladding systems, all of which failed against ‘proposed performance criteria’. Following the death of six people in the 2009 Lakanal Fire, the Coroner wrote to the Secretary of State for Communities and Local Government recommending that building regulations be reviewed to provide clear guidance concerning the external spread of fire. Damning evidence has recently been given by the London Fire Brigade at the Grenfell Tower Inquiry concerning warnings given to the Government about external panels in 2009, followed by a rebuff from Sir Ken Knight, the Government’s chief fire and rescue advisor. Further, retrofitting sprinklers in high-rise blocks was encouraged following the Lakanal Fire and a 2010 fire in Shirley Towers. Yet, notwithstanding the clear messages that certain forms of external wall systems were unsafe, the regulatory regime remained unchanged. More will become public in the coming months as the Grenfell Tower Inquiry turns to evidence from the Government at the end of October 2021.

From the above, we can conclude that acts and omissions of public authorities in the context of building safety may, in certain circumstances, engage the State’s safeguarding obligation under Article 2.

Has the Duty Been Discharged?

In assessing whether the state authorities have complied with the positive obligation, a court must consider the particular circumstances of the case, regard being had, among other elements, to the domestic decision-making process, including investigations and studies, and the complexity of the issue.

It is clearly arguable that the State has failed in its framework duty to maintain an effective regulatory system and has not acted to discharge the operational duty as particular risks have become known.

Guidance can be taken from the European Court of Human Rights (“ECtHR”). In Öneryildiz v Turkey, a number of the applicant’s close relatives were killed when a methane explosion in a nearby refuse tip caused a landslide that engulfed the applicant’s house. A violation of Article 2 was found as the State had failed to take steps to prevent the explosion. Decisive weight was given to the fact that the risk of an explosion had been known, and the authorities had decided not to implement an expert report recommending work that would have reduced the likelihood of an explosion.  

justice_for_grenfell

The Grenfell Tower Inquiry turns to evidence from the Government at the end of October 2021.

In Budayeva v Russia, the ECtHR identified a causal link between “serious administrative flaws” and a mudslide that killed eight people and injured many more. In finding a breach of Article 2, the ECtHR gave noteworthy weight to the fact that Russian authorities failed to heed warnings about the likelihood of a large-scale mudslide, the local population was not warned of the danger, there was no ambiguity about the work that needed to be performed, and the Government gave no reasons why no such steps were taken. These features were all present in the fire safety context: the failure to heed warnings and to let residents know of the danger, together with the apparent lack of any ambiguity regarding what needed to be done and the seeming lack of a justification for inaction.

Considering the available evidence, it is clear that the building safety regulatory regime was not fit for purpose and that this represents a failure of the framework duty. Although it might be argued that the measures put in place to ‘protect’ lives post-Grenfell (such as the waking watch patrols) are adequate to fulfil the operational duty, the evidence suggests otherwise. It was by luck that the residents escaped at the Richmond House and Barking fires, and there has been no evidence to demonstrate that waking watch is sufficient. Massive hikes in insurance costs suggest that the insurance industry agree that buildings remain at high risk.

The Margin of Appreciation and the "Latitude for Judgment"

Article 2 is not, however, an easy cure-all. Proving a causal link between State action (or inaction), the use of combustible cladding, and ongoing risks to life is likely to be challenging, and costly.  This is especially so as the margin of appreciation, that is, the deference given to the Government and public authorities' decisions, means that courts must tread carefully. In particular, the courts must not consider positive operational duties with hindsight, and any court will have to be mindful of the operational choices which states must make in terms of prioritising resources in difficult social and technical spheres (Hatton v United Kingdom [100]-[101]).

Conclusion

The emerging evidence concerning both what was known about the risks of rapid fire spread on certain cladding systems, and the clear present and ongoing risk of devasting fires in blocks, suggest that the State and its emanations have failed, and continue to fail, to take appropriate steps to discharge their positive obligations under Article 2. Nevertheless, pursuing a legal claim would not be easy. There are many procedural and practical challenges to overcome when bringing a challenge under the Human Rights Act 1998. But for the State to be in an ongoing breach of its Article 2 duties underscores the need for more immediate action in the political arena.

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How to cite this blogpost (Harvard style):

Bright, S. and Maxwell, D. (2021) The Right to Life, Positive Duties, and Fire Safety Defects. Available at: https://www.law.ox.ac.uk/housing-after-grenfell/blog/2021/10/right-life-positive-duties-and-fire-safety-defects (Accessed [date])