This blog is based on a speech given by Professor Geraldine Van Bueren QC at a Human Rights Collegium event on ‘Grenfell Tower Fire: The Avoidable Tragedy’ on 19 July.

I make two main calls for what needs to happen after the tragedy at Grenfell Tower.

The first is for an Inquiry into the right to housing. This must ask specifically for a right to adequate housing in the UK. This should be included within the Inquiry of Sir Martin Moore-Bick into the Grenfell tragedy. The survivors and their families need an urgent and effective remedy.

The second call is that, in addition to any criminal prosecutions, the government must look at the case-law under the European Convention on Human Rights (ECHR) on linking the right to life and housing. The UK government could well be in breach of right to life (Article 2 of the ECHR and the Human Rights Act). This is not about having lengthy legal cases, but so that the government can be presented with the evidence and a strong line of jurisprudence, so that those affected receive an acknowledgement, an apology and compensation.

Right to Housing Inquiry

An inquiry into the right to housing could be held at national level, or we can begin in cities. For example, London could hold its own inquiry into the right to housing. This happened in 2011 in Madison County, Wisconsin where a city resolution recognised housing as a human right. British cities could follow this model.

The idea of an inquiry isn’t plucked from thin air. The UK is party to the International Covenant on Economic, Social and Cultural Rights (ICESCR) which binds the UK to the right to adequate housing in Article 11 (1). Unlike the ECHR, the ICESCR has not been brought back home into our law books. But the UK still has to report to the UN about progress on the ICESCR, and Grenfell Tower will undoubtedly be the focus of the next report which will be open to public questioning.  

Under the ICESCR the right to housing should not be interpreted in a narrow or restrictive sense which equates it with, for example, the shelter provided by merely having a roof over one’s head. Nor should it view shelter exclusively as a commodity. Rather it should be seen as the right to live somewhere in security, peace and dignity. The right to housing is seen as an aspect of human dignity and a right of all, irrespective of income. The UK signed on to this but few people know about it. It needs to be more widely known.

The reference in Article 11 (1) of the ICESCR must be read as referring not just to housing but to adequate housing. The monitoring committee for ICESCR defines adequacy. For example, an adequate house must contain certain facilities essential for health, security, comfort and nutrition. Adequate housing must also be habitable, in terms of providing the inhabitants with adequate space and would cover structural hazards. This would include buildings not only with combustible cladding but also fire exits. The physical safety of occupants must be guaranteed as well.

State Parties to the ICESCR should also comprehensively apply the Health Principles of Housing prepared by the World Health Organisation in 1990. The UK is particularly directed to giving due priority to those social groups living in unfavourable conditions by giving them particular consideration. None of this is new. The UK has been party to ICESCR for over 30 years, since 1976.

The reason for the inquiry is the need for a change in ethos. Housing is not a tradeable commodity but a human right. If housing is seen as a human right, the lowest cost is not the question. Rather it is how we, as a nation, fulfil this right for everyone.

Right to life

My second call is for the government to look at the case law under the right to life – a right which binds the UK under both the ECHR and the Human Rights Act (HRA).

The right to life is associated in the popular imagination with a duty being placed on the state not to deprive people intentionally of their lives. What is less well-known, however, is that the right to life has for some time placed positive obligations to prevent loss of life. It is these positive obligations which have implications for the government in relation to the appalling suffering and loss from the Grenfell Tower fire.

Article 2 of the ECHR provides that “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally.” This is reproduced word for word in the HRA.

According to the European Court of Human Rights there is a positive obligation on governments to take “all appropriate steps” to safeguard life for the purposes of Article 2. In addition these positive obligations must apply “in the context of any activity, whether public or not, in which the right to life may be at stake” and this clearly applies to the regulations concerning high-rise buildings.

Specifically the European Court of Human Rights has considered cases relating to housing which have resulted in a loss of life. The question that has to be asked is — are the principles, which emerge from this jurisprudence, applicable to the government and Grenfell Tower?

In Oneryildiz v Turkey the court stressed that there was practical information available, that the inhabitants were faced with a threat to their physical integrity on account of the technical shortcomings of the municipal rubbish tip.

Similarly with Grenfell Tower, the risks would appear to have been made known to the government. The information to be considered includes the information arising from the inquest into the fire in Lakanal House in 2009, information provided by the All-Party Parliamentary Fire Safety and Rescue Group and directly communicated to them before the refurbishment and information provided by the tenants.

In the Oneryildiz case the court found that the timely installation of a safety system before a situation became fatal would have been an effective preventative measure “without diverting the state’s resources to an excessive degree”. Similarly it would be open to a court here to consider whether the installation of safer cladding panels and the cost of a sprinkler system would have diverted the UK resources “to an excessive degree”. It is unlikely that would be the case.

Another factor relied upon by the European Court was the lack of an effective supervisory system and this would also be a consideration for a court considering fire safety inspections at Grenfell Tower.

Another case is Budayeva v Russia, where an authority knew a dam had been weakened but failed to tell nearby residents. The European Court has stated that where lives are at risk there is a smaller ‘margin of appreciation’ (or discretion) given to states.

In essence the questions to be asked focus on what the government knew, and what the government ought to have known, from the knowledge communicated to it. Also critical is whether and how the government acted upon this knowledge.

Independent of any criminal investigation, knowledge of this case-law needs to be made known to the government so that rather than putting the victims through more pain and uncertainty, the government can swiftly admit responsibility, apologise and make proper reparation speedily.

By including a right to housing inquiry, the government can ensure Grenfell does not happen again and also look at housing in the necessary wider context.

By looking at the right to life, the government do not have to wait for an inquiry to conclude before an apology, acknowledgement and compensation is made to those who lived in Grenfell Tower.