This blog is based on a speech I gave at a Human Rights Collegium event on ‘Grenfell Tower Fire: The Avoidable Tragedy’ on 19 July.

As I watched the news breaking about the Grenfell Tower disaster, my first thought was that it was a devastating tragedy. But as information started to trickle out in the hours and days that followed, my second thought was this was a human rights tragedy. There are serious questions to be answered about the role of public officials in this tragedy both at a local level – such as why the concerns of residents about safety went unheard or ignored, the design and recent refurbishment of the building, the lack of local fire safety procedures etc – and at a national level – in terms of changes to fire service powers, regulations on building safety etc.

Why is the Human Rights Act relevant to Grenfell?

The Human Rights Act (HRA) is the main law protecting our human rights in the UK. Passed by Parliament, it came into force in 2000 and makes 16 rights from the European Convention on Human Rights part of our law in the UK. Previously we had access to those rights only through that Convention and had to go to the European Court of Human Rights in Strasbourg to get access to justice. Now those rights are part of our law here at home.

Of the 16 rights in the HRA, three are particularly relevant to Grenfell:

  • right to life (protected by Article 2 in the HRA)
  • right to respect for home (Article 8)
  • right to peaceful enjoyment of possessions (Protocol 1, Article 1)

These rights have been used by people involved in other tragedies to hold public officials to account for loss of life, but also loss of homes and possessions.

How does the HRA work?

The HRA works in three main ways, all of relevance to Grenfell:

  1. The HRA puts a direct legal duty on public officials to respect and protect our rights. This means public officials need to be thinking about our human rights in their day-to-day decisions. This includes public officials like housing officers/others at local authorities, police officers, fire officers etc. I’ll come back to this and what this means in practice.
  2. Where public officials fail to respect and protect our rights, we can now take action in our local courts and a British judge will decide if our rights have been breached. This sets up a system of local legal accountability and local access to justice.
  3. The HRA underpins all other laws, policy, guidance etc. This means all other laws, regulations etc should all be compatible with the rights in the HRA. Where we don’t think they are, we can ask a court to decide whether a piece of law is incompatible with our rights, and if so Parliament can look again at the law to remedy this.

Who has a duty under the HRA?

The duty on public officials to respect and protect our rights gives the HRA its teeth – the duty allows us to hold public officials to account. There are two types of organisations who have duties under the HRA:

  • Public authorities: like local councils, emergency services (police, fire, ambulance), government departments, NHS Trusts etc.
  • Other types of organisations who are carrying out ‘public functions’: like private companies, charities, other bodies who are delivering public services (services like housing, health, care, prisons etc). These organisations could be commissioned to deliver a service by a public authority (with public money involved), or could be acting in lieu of a public authority (carrying out functions the local council would otherwise provide). For example, some housing associations.

But public authorities always have a duty under the HRA, even if some service delivery is commissioned out. So where there is uncertainty about whether a private company or charity does have a legal duty under the HRA, taking the issue to a public authority will mean they have a duty to act.

What are the duties under the HRA?

Public officials have three duties under the HRA, to respect, protect and fulfil our human rights.

  • Respect: sometimes called a ‘negative duty’ – this means public officials should not interfere with our rights where possible
  • Protect: sometimes called a ‘positive duty’ – this means public officials should take reasonable steps to protect our human rights where they are known to be at risk
  • Fulfill: sometimes called a ‘procedural duty’ – this means having systems in place to prevent human rights breaches, or to investigate when they occur.

For Grenfell, the last two are most relevant and questions will need to be answered about whether there has been a failure by the local authority, or others, to protect the rights of residents, and an investigation to establish what has gone wrong and where responsibility lies.

Positive duty to protect rights

This duty requires public officials to do all that could reasonably be expected of them to protect life where they know (or should know) that it is at risk. This includes steps to prevent loss of life by accidents. The European Court of Human Rights have found breaches of this positive duty (in other countries) where deaths have occurred as a result of:

  • An explosion at a council-run rubbish tip which killed people living nearby (Oneryildiz v Turkey)
  • Mudslides, where the authorities had failed to implement land-planning and emergency relief policies (Budayeva v Russia)

There are parallels here with Grenfell, following the raft of complaints and concerns that were raised by residents about the risk of fire, including:

  • the Grenfell Action Group raising concerns about a fire risk back in 2013
  • local councillor Judith Blakeman, who sits on the Kensington and Chelsea Tenant Management Organisation board, raising concerns about installation of National Grid gas pipes in the main stairwells
  • David Collins, former chair of the Grenfell Tower residents’ association, calling for an inquiry in January 2016 at a meeting of Kensington and Chelsea council’s housing and planning scrutiny committee

The list goes on.

There are serious questions to be answered about why these concerns were dismissed and action wasn’t taken to look into the risk of fire to the building, or steps taken to mitigate the risk.

Duty to investigate

The 'procedural' duty under the right to life requires organisations to have systems in place to try and prevent known risks to life, and to investigate where deaths occur and public officials might be involved or implicated. The Hillsborough disaster offers some key lessons for Grenfell. 96 men, women and children died as a result of the Hillsborough disaster in a Sheffield football stadium on 15 April 1989.

Lord Justice Taylor was appointed to lead a judicial inquiry. His interim report was published in July 1989, just 3 months after the disaster. It was a pithy, quick response which established facts, identified key issues and failings, and gave 43 recommendations. It then became a political decision about whether to accept and implement those recommendations, and coupled with the Director of Public Prosecution's decision not to prosecute anyone, the ‘state’ response stalled.

It was the survivors and the families of the victims who continued campaigning to get justice (and such inquiry reports can be used as a tool to keep pressure on). Still, it was years later when the issue came back onto the national agenda. In 2009, 140,000 people signed a petition forcing a Commons debate, which led to the full disclosure of 300,000 documents held by public bodies on Hillsborough. Then in 2010, the Hillsborough Independent Panel was established to review previously unseen evidence. Their report was damning. It led to a High Court ruling in 2012 that the right to life in the HRA required that the first inquest verdicts of “accidental death” be quashed and ordered that fresh inquests take place.

This time though, the new inquests had to comply with the HRA and the procedural duty in the right to life to investigate deaths where public officials might be involved. This meant the inquests were wider in scope, looking into the broader circumstances of the disaster, such as:

  • the structure of the stadium
  • planning for the match
  • the emergency services’ response
  • the amendment of police witness statements.

Importantly, the procedural duty in the right to life also gives the families of those who died more of a role by receiving the documents and questioning the evidence and witnesses. (For more on the role of the HRA in Hillsborough, see an excellent piece by Anna Morris, a lawyer who supported the families, on this site.)

Finally, in 2016 a jury concluded that the 96 Hillsborough victims were unlawfully killed, pointing to police failures, stadium design faults, and a delayed response by the ambulance service. For the families, this was the end of 27 years of campaigning.

The procedural duty to investigate loss of life at Grenfell will be kicked off by the public inquiry led by Sir Martin Moore-Bick, the remit of which is still being consulted upon. This will be followed by inquests into the deaths and potentially criminal proceedings.

Lessons need to be learnt from Hillsborough to ensure survivors and families from Grenfell don’t have the same painful wait for answers and justice.