June 14, 2018

Putting the cart before the horse?

An initial view of the Hackitt Review of Building Regulations

Thursday 17 May was the day of publication of Dame Judith Hackitt’s Report “Building a Safer Future” commissioned in the wake of the Grenfell Tower disaster. One might have expected that it would have got a smooth ride both in Parliament and in the media given the very proper level of public indignation that such a tragedy could have occurred and the consequential desire for stricter rules and better enforcement. In fact however the day was marked by growing confusion between the statements made by the main players in the announcement, by strong ( but not quite universal) criticism from many of those consulted by Dame Judith and a Government statement to Parliament which focussed on a consultation regarding two measures not proposed in the Report at all. Where then are we on the Report and to what extent should its findings be challenged?

The first point, which became abundantly clear when Dame Judith faced a Select Committee hearing later on publication day, is that she saw the object of her report as being to lay down a future comprehensive system for ensuring the safety of tower blocks rather than dealing with the specific issues arising from the Grenfell fire. This was her response to the arguments that the Report should have made specific recommendations to ban the use of combustible cladding and the use of desktop studies alone to assess the combustibility of materials. However such was the pressure on these two points that the Communities Secretary announced both would be the subject of an immediate public consultation. This Government turnaround highlighted one of the difficulties with the Report namely that it has no clear roadmap to show to get to the endpoint she seeks for building regulation and seemingly little recognition of the need for Government to take immediate steps in the regulatory area, at least for the short term.

This brings us on to the question of precisely what ultimate goal the Report prescribes. The very positive part of the Report is the recognition of the failings in the present system and the need for these to be addressed in a comprehensive way. Thus the report is clear as to the confused state of the regulations (even on the day of publication there still seemed different views as to whether the Grenfell cladding was currently banned or not), the lack of a clear line of accountability for safety, the muddle which is procurement, the failure to define competency, the inadequacy of testing requirements and the failure to give a meaningful voice to the views of residents. Moreover, Dame Judith clearly identified the need for specific and intensive regulation of high rise blocks, the requirement for a specific regulator to carry this task and for that regulator to have real powers and sanctions at its disposal. Whatever else Dame Judith can be accused of, no one can say that she has sought to “sweep under the carpet” the deficiencies of the present system which have lead to Grenfell and which, if uncorrected, could produce another disaster.

Because concern about the lack of short-term measures described above has rather taken over the debate, there has as yet been rather less critical analysis of Dame Judith’s long-term systemic solution to the problems she correctly diagnoses. In my view, we need such a discussion. What the Report suggests is essentially setting up a joint authority between local authorities, HSE and the fire and rescue authorities on the basis of the current “COMAH arrangements” ( for high-risk chemical sites) between HSE and the UK environment agencies. This obviously reflects her previous work experience in the chemical industry and HSE. It may, however, be questioned as to whether the two situations are analogous. First and foremost COMAH adds to what is generally thought a satisfactory regime for lower risk sites. However as the Report amply demonstrates the present building regime is universally deficient – it is simply that when its failings become manifest, it is likely to yield its worst results in tower blocks. Given the need for legislation, it really would seem more appropriate to consider the creation of an overall national fire regulatory authority, either free-standing or perhaps as part of a reinforced HSE. Such an authority could then carry out the basic functions of putting in place clear regulations for the whole industry which address the main issues, diffusing information and learning including from oversees and overseeing enforcement to proper standards. Such a body could then go on to operate the kind of stricter regime for higher risk buildings that Dame Judith proposes. The point was also well made at the Select Committee hearing that promoting a marriage between three bodies with wholly different accountabilities will be much more difficult than, as with COMAH, bringing together the resources of arms-length bodies with a strong existing tradition of cooperation. Her view that a future regime should regulate on the basis of achieving outcomes rather than be prescriptive is arguable given that there is a strong argument for a mixture of the two to achieve real change quickly.

The final key point I should mention here is Dame Judith’ emphasis on the need for a change of culture in the industry and for this to begin now without waiting for legislation. I don’t doubt for a moment that Grenfell will have been a jolt to the industry and increase the numbers in the industry who genuinely want to do the right thing. However, we should be cautious in my view in expecting an overnight mass Damascene conversion – given that the financial incentives to inaction will not be changed by exhortation alone. The major improvement in occupational health and safety in this country came after a heavy investment in enforcement by the regulator following which industry did indeed take the lead and used external commercial and voluntary sector expertise to raise standards which then enabled HSE to reduce its level of enforcement activity. In trying to argue that the building industry can be got to change its culture before new regulatory arrangements are introduced, there is a danger here, as elsewhere with the Hackitt Review, of putting the cart before the horse.