12.09.2024

It will happen again

Sir Martin Moore-Bick’s report spreads blame around lavishly, but downplays the responsibility of government policy and institutional corruption, argues Mike Macnair

The report of the second phase of the inquiry under retired judge Sir Martin Moore-Bick into the June 2017 Grenfell Tower fire, in which 72 people died, was published on September 4. The report runs to seven volumes of elaborate detail,¹ but the story it tells is basically simple.

Starting with Michael Heseltine in 1984, building safety was progressively moved from a state-regulation regime to one of self-regulation. One of the last acts of the John Major government was, in March 1997, to privatise the Building Research Establishment that performed tests on the safety of building materials. The conflict of interest and duty that privatisation set up led the BRE to adopt a light-touch approach to testing clams made by its customers - the materials producers and building contractors. It “sacrificed rigorous application of principle to its commercial interests”. The British Board of Agrément (BBA) had always been a commercial organisation, described as “incompetent” in the report. This was because it “failed to manage the conflict between the need to act as a commercial organisation in order to attract and retain customers and the need to exercise a high degree of rigour and independence in its investigations”. The UK Accreditation Service (UKAS), another private body working for government, accredited the BBA and BRE, who paid fees for accreditation; it “relied too much on the candour and co-operation of the organisations being assessed and too much was left to trust”.²

Deregulation progressed further under the Tony Blair government and intensified under David Cameron, with the department of communities and local government under Eric Pickles particularly obsessed.

In this context, the cladding producers - particularly Arconic, Celotex and Kingspan - identified the UK as a regulatory ‘soft touch’, and proceeded to dishonestly game the self-regulation testing regime, holding out materials that increased fire risk as actually fire-safe according to UK testing rules.

The government department (which has been repeatedly renamed - currently the Ministry of Housing, Communities and Local Government) had been warned of the risks of fire in blocks of flats in 1991, 1999 and 2009, but took no action.

The Royal Borough of Kensington and Chelsea and its ‘tenant management organisation’ (TMO) was exclusively concerned with cost-cutting, without regard to tenant complaints, and hence contracted for cheaper (more dangerous) cladding and ignored other complaints about fire risks. The architects, head contractor and subcontractors all assumed that the safety of the cladding was someone else’s responsibility.

The number of deaths was increased because the London Fire Brigade gave inappropriate advice to ‘stay put’ - essentially because they had not updated advice, which was valid before the use of cladding, in the light of the increased fire-spread risk caused by the addition of cladding.

A significant number of individuals are named in the report. For example, Claude Wehrle of Arconic (who refused to give oral evidence, relying on a French statute that prohibits French firms giving evidence for foreign legal proceedings) is said on the basis of the correspondence made available to the inquiry to have acted dishonestly. At the department an individual civil servant, Brian Martin, “was allowed too much freedom of action without adequate oversight”; in Kensington and Chelsea’s TMO, chief executive Robert Black failed to disclose fire issues to the council, while estate fire assessor Carl Stokes was unqualified for the role. And so on.

The overall effect of this very wide spreading around of blame for the disaster, together with the burial of issues in seven volumes of details and the fact that the inquiry has taken seven years to complete, is to diffuse the blame - and thereby to defuse the potential political implications.

Basics

When we strip the narrative down to its basics, what it comes down to is this. Successive governments since the Thatcher years have set out to make it easier for property developers and construction operators to do business. These changes have created an appearance of public regulation of construction, while the supposed ‘policemen’ of this regulatory regime are actually paid by the ‘criminals’.

The conflicts of interest and duty built into this regime had as their natural and probable consequence exploitation by firms like Arconic and Kingspan. That the end result would be the use of wholly inappropriate materials to clad housing, leading to a fire that led to many deaths, was also the natural and probable - wholly predictable - consequence of the policy of self-regulation. It is this government policy, which has been supported by the advertising-funded media and by the judiciary and legal profession, which is at the end of the day responsible.

The report attributes responsibility to the TMO, the architect and the head and sub-contractor, for relying on the BBA and BRE certifications of the cladding products; and to the London Fire Brigade for failing to change its stay-put policy in response to the increased risk of fire spread caused by the cladding. But precisely the point of central testing agencies like the BBA and BRE is to avoid the necessity of every contracting party carrying out their own tests on products sold to them; so that all these people (and the tenants) should be entitled to rely on these certifications. Attributing blame to all these people would, no doubt, be relevant in a civil action for the tort of negligence. In the context of this report it is a distraction.

I put on one side also the issues of class and race, which might appear to be posed by the fact that many of the Grenfell Tower tenants were in social housing and many of them from racial minorities. I put them on one side because, though the Kensington and Chelsea TMO’s treatment of the tenants was plainly class-biased and may well have been affected by racism, the inquiry’s findings show that the disaster could just have easily happened to a luxury high-rise block occupied by very wealthy tenants. It was caused immediately by the frauds of the manufacturers, and secondarily by the government’s decisions to privatise a core regulatory function of the state - fire safety in cities - which was a matter of public regulation already in Roman and in medieval English law.³

The report nails the dishonest statements, non-disclosures, and so on, of the firms, Arconic, Celotex and Kingspan. But there were also many dishonest statements, non-disclosures, and so on, from 1984 to 2024 about the benefits of deregulation and self-regulation in the construction industry, from government ministers, from the Conservative Party, from New Labour leaders and ‘Orange Book’ Liberal Democrats, and from the advertising-funded media. As I have said, Grenfell Tower (and other less serious losses caused by the use of this cladding) were not merely foreseeable, but the natural and probable consequences of the regime of deregulation begun by Heseltine in 1984. They were thus also the natural and probable consequences of media campaigns for deregulation.

Roman law

Jump abruptly into the past, in Roman law some civil liabilities depended on ‘culpa’ (fault, including ‘carelessness’). Others required ‘dolus’ (intention or bad faith). At the borders of ‘dolus’ was ‘culpa lata’: severe fault, or when translated into English law, ‘gross negligence’ - the standard of criminal liability for unintentional manslaughter. The German jurist, Ulrich Zasius (1461-1535/36), usefully divided ‘culpa lata’ into two classes. Firstly, ‘Crimen versutiae’ is self-serving carelessness. Its self-serving quality means that we should not believe the party who seeks merely to say, ‘Terribly sorry, I made a mistake’: this sort of statement is too easy to make. Secondly, ‘Crimen ignaviae’ is carelessness of a sort that ignores what was so obvious to everyone else that it looked like wilful blindness.

The political leaders are guilty of crimen versutiae leading to the deaths at Grenfell and the cladding problem still unsolved, as can be seen from recent fires in Slough and Dagenham. They have indulged the construction industry partly because of its fraudulent promises - that with deregulation they can solve the housing problem, provide more jobs, and so on. In reality, all they do is produce more luxury housing, as well as overpriced and dodgy work for the public sector. They have done so also partly because of party political donations from the sector, and lobbyists paid by it for private access to ministers.

Lying behind this form of corruption is - again - the advertising-funded media. The advertising funding amplifies the political voice of the proprietor, so as to drown out competing voices. The result is that the politicians, to get themselves heard, are forced to take bribes from large donors. These bribes do not usually work as direct payment for results: instead, ‘gift exchange’ is at work - the gift produces an expectation of a return gift, and the return gift is decisions favouring the donor.⁴ There will be no end to this form of corruption without an end to the advertising-funding of media.

Libel

Meanwhile, the judiciary and the legal profession also bear an important share of responsibility, wholly unmentioned by the report. Philip Heath of Kingspan emailed in response to criticisms of its cladding product: “Wintech can go f#ck themselves, and if they are not careful we’ll sue the a#se of them” (Report, para 22.94). Heath’s reference is to the circumstance that the law of libel, as it at present operates, provides systematic cover for fraud, by making it extraordinarily difficult to expose it: hence, if Wintech exposed Kingspan’s dishonesty, it would be at risk of the grotesque costs in defamation proceedings.

This is not all. The report is clear that the regulatory regime was structured so as to create incentives on the regulators - BBA, BRE, UKAS - to adopt a ‘light touch’ approach to their fee-payers, the firms regulated. There could have been a counter-incentive to this incentive. That would have been to make the regulators liable in negligence to people who suffered losses in the ‘light touch’ which led to the regulated firms causing such losses.

However, at the same period as the Thatcher and following governments were pushing for deregulation and privatisation of regulators, the House of Lords in its judicial capacity set its face firmly against liability of the regulators for negligence. This was the meaning of Caparo Industries v Dickman (1990) establishing non-liability of accountants for negligent audit to anyone other than the fraudsters themselves; Murphy v Brentwood District Council (1991) and following cases establishing non-liability of building inspectors (and the later cases, of builders to subsequent owners when the defects became visible); and of Marc Rich v Bishop Rock Marine (1995) establishing non-liability of ‘classification societies’ for their certification of ships as seaworthy.⁵

The judiciary’s efforts to protect the construction industry from any liability other than to its immediate contractors continues to this very day. On July 9 2024 the UK supreme court handed down its decision in Abbey Healthcare (Mill Hill) Ltd v Augusta 2008 LLP (formerly Simply Construct (UK) LLP).⁶ The decision is on its face on a very technical point. The court’s reasoning, however, is utterly tortured, in order to achieve the result that the construction contractor shall be allowed to use ‘scorched earth litigation tactics’ - reliance on deep pockets to outspend the complainant - to avoid any liability to the end user. Crimen versutiae again - here because the interest of the construction companies is identical to the interest of the legal profession as such in ‘scorched earth litigation tactics’.

Sir Keir Starmer said in response to the report: “We must make sure that nothing like this can ever happen again”. But, as long as there are advertising-funded media, commercial lobbyists and the ‘free market in legal services’, it is certain that things like this will happen again.

1. www.grenfelltowerinquiry.org.uk/phase-2-report.↩︎

2. Both these from the report’s ‘executive summary’, at 2.51 and 2.42.↩︎

3. RA Klitzke, ‘Roman building ordinances relating to fire protection’ American Journal of Legal History Vol 3, pp173‑87; HM Chew and W Kellaway (eds) London assize of nuisance London 1973: ‘Introduction’, ppix‑xi.↩︎

4. M Mauss The gift (1925), translated by WD Halls, Abingdon 2002; cf A Graycar and D Jancsics, ‘Gift giving and corruption’ International Journal of Public Administration Vol 40 (2017), pp1013-23.↩︎

5. Caparo industries v Dickman [1990] UKHL 2, Murphy v Brentwood district council [1991] UKHL 2, Marc Rich v Bishop Rock Marine [1995] UKHL 4.↩︎

6. [2024] UKSC 23.↩︎