The recent tragedy at Grenfell Tower was completely preventable, yet it happened. Why?

Buildings and fire safety are not this author’s specialist area and consequently only some quite general points can be made. However, given what is known at present about the fire and its background, it is reasonable to assume that there is systemic failure (rather than that of a single individual).  And that there is a significant (if esoteric) European Union (EU) dimension.

Whilst the building dates to the 1970s (when it was clad in fire resistant asbestos cement, ‘Glasal’ panels), there was a recent refurbishment completed last year when it was re-clad in combustible polyethylene insulated Reynobond panels and polyisocyanurate (PIR) Celotex RS5000 insulation blocks both apparently compliant with the Building Regulations and EU legal requirements.

The involvement of the EU in buildings and materials safety is considered in some detail, from the information currently available, by Christopher Booker: Grenfell Tower stands as a chilling tombstone to a megalomaniac dream, writing in the Daily Telegraph on 17th June 2017 (and reproduced here), and Dr Richard North on his blog on 18th June 2017 : Booker: Grenfell – the EU dimension, on 19th June 2017: Brexit: the Grenfell dimension. and on 28th June 2017Brexit: the Grenfell dimension (reprise).  Sadly this is not the end of the story of how the EU interferes with, and potentially can undermine, safety despite the best efforts of people to successfully manage the additional complexity created. The following outlines some of the difficulties.

The recent refurbishment and re-cladding of the building would probably have been carried out via one or more contracts, let in accordance with the then current EU Public Procurement directives incorporated into UK law.  Nothing is known about the nature of the contract(s) or the specifications used, nor where design and specification responsibility ultimately rested.  However, the procurement directives mandate the process to be followed for awarding public contracts above a defined value.  Regarding use of technical specifications to define requirements, they prefer performance or functional requirements supplementing or replacing relevant standards (usually European or other Technical Standards). There is also considerable case law from the European Court of Justice relating to these directives which would also apply.  

Not following the process correctly or perceived ‘unfair’ (unequal) treatment or specified requirements could result in a costly and delaying legal challenge being brought by an unsuccessful tenderer.  Perversely this discourages letting small contracts and reduces the efforts that can be used to get the final contract fit for purpose.  There is also, currently, a requirement to accept equivalence between standards and performance when satisfactorily demonstrated by a tenderer – potentially a tricky issue.  Lowest price of nominally compliant offers is commonly used for awarding contracts (it is difficult to justify awarding a contract for a higher price and facing a potential legal challenge from the lowest priced pre-qualified bidder).  However, anyone writing the procurement specification or evaluating the tenders would appear to be on safe ground if the cladding materials complied with relevant standards and/or equivalent performance requirements – but how ‘safe’ actually is ‘safe’?    

European Law and judgments by the European Court of Justice have primacy over respectively UK domestic law (including Health and Safety law) and our courts.  Yet on the ground we would have to comply with both even when there are differences, but give way to EU requirements.  To take an example, EU law can require hazards to be managed to ‘tolerable’ standards of risk (frequency of likely occurrence and consequences), whilst UK domestic law requires the risk to be managed to ALARP (As Low As Reasonably Practicable) in the light of current (worldwide) knowledge and invention.

‘Tolerable’ could be ALARP or a poorer standard because, for example, cognisance has not been taken of current knowledge and invention.  ALARP tends to impose a hierarchy of safety risk mitigation methods based on their effectiveness. However, ‘tolerable’ could be satisfied by following existing practices originating long ago (following a ‘similar’ reference system), or following EU legally mandated standards including standards that are superseded or poorly composed.

Safety justifications then become arguments for doing nothing different (and potentially safer).  Consequently safety is getting partially outsourced, without accountability, to standards, regulations, EU Directives and existing practice, whereas traditional UK practice is that of a legal duty of care requiring risks to be actively managed to ALARP by those introducing the potential dangers or hazards.

Standards, including European Standards, or EU mandated specifications, can contain mistakes and omissions. For example, some requirements may be subjective and are not objectively confirmed by testing. Standards tend to be the lowest common denominator that can be agreed by the drafting committee. Contributory factors to shortcomings can include the standard being done in a hurry to satisfy the EU’s (political or other) objectives, not being fully discussed or being heavily influenced by manufacturers (wishing to promote their viewpoints or products) rather than users who have to live with the end result.  

Getting a type approval (part of an EU supported certification scheme, such as the CE mark) allows a manufacturer to place a product ‘on the market’ within the EU or the EEA (European Economic Area). On the market is not the same as full assessment of suitability for a particular use, and (type) testing could have been limited.  There is an argument that imposing stringent fire safety performance requirements on (some) building cladding could inhibit competition and is not needed since fire safety can be managed in other ways, for example by the architect/designer, materials specifier, building owner or fire safety regulator/regulations mandating fire resistant cladding and insulation, where deemed necessary, or by installing additional fire suppression within the building.

So there are plenty of areas for concern affecting safety (including fire safety) arising from the EU dimension: over-reliance on poor standards; safety management complexity; differing attitudes to safety; outsourcing some of the responsibility for safety; limited flexibility to award contract to higher priced bidder using better materials.  And everyone involved is effectively operating within a process straightjacket, where deviation from the norm (‘rocking the boat’) is difficult.  

It is too early to know how closely the activities and potential issues outlined here resemble any of the actual events relating to the refurbishment of Grenfell Tower. Also, we cannot know what was weighing on the minds of those involved in making the relevant decisions or even if they were competent to do so.

We often see noticeboards proclaiming that this or that project or building was made possible through the EU (giving us back some of our money).  Grenfell Tower, especially if left as is, could be the location of another large noticeboard which credits the EU’s contribution to its ensuing tragedy.

Photo by ChiralJon

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