Grenfell inquiry opens: a lesson in alienation
Announcing what an Inquiry will not cover, announcing who will not be an assessor, and the chair walking out of the opening session when a lawyer for survivors tries to say something, suggests that the Grenfell Inquiry has got off to the worst possible start. Pete Weatherby QC writes
It is, of course, of paramount importance to the bereaved, the survivors, others living in similar social housing tower blocks – and all of the rest of us – that the Inquiry succeeds and does not fall into the same abyss as has been the case so often with official investigations in our jurisdiction.
This is not an Inquiry into which side of a road a new Tesco is to be built. It requires empathy, sensitivity, proper consultation and transparency. It requires proper engagement with the bereaved and survivors, listening to them in private but hearing their representatives in public sessions.
There was no need to restrict ‘terms of reference’ before decisions have been made about who can and cannot take part, before funding for representatives is put in place and before everyone is heard. We all know the key issues – they have been fully aired in the media. The scope of the Inquiry should have been left open at least until everyone could have a say, with proper advice, in public.
It is an irony of this Inquiry that one important issue is why safety fears, raised by residents long before the fire, were ignored. One of the answers is likely to be that legal aid cuts meant that they could not access proper advice. Yet here we are again, just like the initial Hillsborough inquests and inquiry, and many others too, with important decisions being taken in private without transparency. The institutions and corporations have their legal teams in place within hours of a disaster but important decisions are already taken before those who should be front and centre stage – the families, survivors, local residents – can be properly involved.
In terms of scope, the law provides that ‘terms of reference’ are set by the relevant minister – in this case the Prime Minister. Yet here, the PM has effectively offloaded that responsibility on the chair, Sir Martin Moore Bick. Criticism of the terms of reference will now inevitably fall on him rather than her, despite the fact that the restrictions relate mainly to ‘big picture’, central government issues such as the effects of austerity, privatisation and social housing policy. There is, of course, no issue that the chair should be involved in setting terms, but why the panic in fixing the ambit of the Inquiry before there has been full consultation and submissions?
Indeed many inquiries deliberately leave ambit and scope widely drawn so that nothing is missed and any proper reining-in of investigations can be made in full knowledge and with everyone having their say. A widely acknowledged example of this was the MacPherson Inquiry following the murder of Stephen Lawrence. The one key advantage of Inquiries, as against Inquests, is that the former are bespoke and can be much more flexible. Of course, we need to know urgently how to stop something similar happening again – but why on earth should a second phase not include whether and why austerity, cuts and ideologically-driven policies such as privatisation fatally diminished safety provision?
How such policies should change will ultimately be for policy-makers, but those elected to determine policy can only be assisted by findings as to whether residents’ expressed safety fears were not listened to because of the abandonment of whole areas of public funding for legal advice, or whether removing the management of Grenfell from public authorities adversely affected decisions relating to safety. These are capable of being determined as matters of fact.
In his short opening statement, Sir Martin acknowledged the loss of lives and homes, the devastation for the bereaved, and held a minute of silence. It is said that silence is golden but I venture that those who lost mothers and sisters, grandfathers and children would have felt reassured that the loss of their loved ones was to be truly marked if the Chair of their inquiry had announced that a section of it would hear evidence of who those people were, how they lived and loved, what they did and achieved.
Recent examples of this have been the 7/7 and Grainger inquiries and the Hillsborough inquests – the latter hearing six weeks of evidence about the deceased themselves. Given the extreme urgency of some parts of the Inquiry – in view of the number of social housing blocks across the country with questionable safety provisions – evidence about the bereaved might have to wait, but that is even more a reason to announce that it will happen.
In announcing his decision not to include a survivor as an assessor to the inquiry the Chair has raised the temperature by rejecting the legitimate aspiration of some of the bereaved and survivors without indicating what he will do instead. It may have been reasonable to say that having someone who survived the fire as an assessor could compromise the independence of the Inquiry but without more, the Chair risked turning an issue requiring proper debate into a confrontational announcement.
The calls for diversity and for the involvement of people from ‘both sides of the track’ are wholly reasonable. It is not an insult for the people affected by this tragedy to question whether a retired senior judge can have any real feel for the experiences of those living in social housing tower blocks. It is manifestly reasonable to call for him to appoint assessors who do have such experience. Maybe he will, but if he was going to deal with and reject calls for a survivor to be involved, in his opening address, then it would not have been unreasonable for him to also announce that he very much had in mind the concerns expressed and that he was actively considering appointing helpers who would meet those concerns.
Likewise, appointing a Solicitor to the Inquiry from the Government Legal Department rather than an independent firm sends the wrong message, as does the fact that all three senior Counsel to the Inquiry are white. I do not question that they are all eminent and respected lawyers but it is deeply depressing in 2017 that the very make up of the Inquiry team in a case such as this does not begin to reflect the people affected.
A successful Grenfell Inquiry requires a Chair that is independent and dispassionate, with the experience to manage a judicial investigation of considerable complexity. Sir Martin can certainly tick all those boxes but there are further requirements. Independence and objectivity do not imply being blind to the emotions or real life experiences of those affected by the tragedy, or indeed their socio-economic position and heritage diversity. Indeed it implies the opposite and some of the pitfalls of past inquiries can be traced to a disconnect between inquirers and those affected by the particular tragedy. Not only common sense but also the law requires that bereaved families and survivors are put – as I have described above – centre and front of stage. Both domestic and Article 2 jurisprudence is very clear on this.
At the first Hillsborough inquests the deceased were referred to at times by their ‘body number’ rather than their name, no provision was made for the bereaved to be represented, and disclosure of documents was minimal. Inquests were what the state inflicted on the bereaved, who were patronised observers. Involving those directly affected by disaster and tragedy, from beginning to end, is a precondition for successful investigations and inquiries.
It has been reported that Sir Martin indicated that he would not take questions at the opening hearing and that is why he walked out of the room when Michael Mansfield QC tried to address him on behalf of some of the survivors. To put it mildly, the theatre of that moment was unfortunate. At the moment of the opening of their Inquiry the bereaved and survivors were being spoken at.
The opening did not reassure on issues of substance, scope, or the inquiry process. In an address of some 45 minutes Sir Martin found time to stress that the number of representatives allowed at the Inquiry would be limited, and detail that future written submissions should be no longer than 15 pages and have a particular print and line-spacing size. Yet there was no time for contributions from any representatives or opening statements from those involved or even a timetable for when those would occur.
No doubt questions about whether the Inquiry will deal with why only 2% of social housing towers have sprinkler systems or why over 70% of them have only one exit will have to await another day. They will certainly not go away. Neither will questions about whether grant and funding cuts and the creation of private bodies to manage social housing projects have led to decisions which compromised the safety of the residents of Grenfell and thousands of similar blocks across the country.
This article first appeared on September 19, 2017
Pete Weatherby QC
Pete practices mainly in human rights, public, prison, inquest and criminal law. Pete led the team representing 22 of the bereaved Hillsborough families at the Warrington Inquests