IN THE MATTER OF THE PUBLIC INQUIRY INTO THE FIRE AT GRENFELL TOWER

THE GRENFELL TOWER INQUIRY

EQUALITY AND HUMAN RIGHTS COMMISSION SUBMISSIONS ON ARTICLE 2 ECHR, THE EQUALITY ACT 2010

AND PARTICIPATION OF THE SURVIVORS AND BEREAVED

A. Introduction and Summary

1. On 10 December 2017, International Human Rights Day, the Equality and

Human Rights Commission launched a new project, “Following Grenfell: The

Human Rights and Equality Dimension”. Its public statement explains that

the purpose of the project is to examine the circumstances of the fire,

focusing on issues concerning the protection of human rights and equality.1

2. The Commission will be concentrating on its areas of expertise to ensure

that the human rights and equality dimensions of the events on the night of

the fire and surrounding circumstances are not overlooked. The Commission

intends to make public submissions on the key human rights and equality

issues, to provide commentary on the evidence heard by the public inquiry,

and, at the end of the project, to publish a report summarising its work and

any recommendations.

3. The project seeks to complement the work of the Grenfell Tower Inquiry, not

to duplicate it. The Commission is not using its statutory inquiry powers, but

if during the course of the project it becomes necessary to use its formal

powers to assess compliance with the public sector equality duty (PSED) or

investigate potential unlawful acts under the Equality Act 2010, it will do so. 2

1 https://www.equalityhumanrights.com/en/following-grenfell2 The Commission’s statutory powers are set out in the Equality Act 2006. Section 31 enables the Commission to conduct an assessment of a public authority’s compliance with the PSED. Section 20

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4. This is the Commission’s first public submission. A copy of its public

submissions will be made available on the Commission’s website. The

submissions are provided to the Grenfell Tower Inquiry in the hope that they

will assist the Inquiry in properly identifying and understanding the relevant

human rights obligations, and, in particular, the critical role that the Inquiry

will play in discharging the UK’s obligation under Article 2 of the European

Convention on Human Rights (ECHR) to investigate state responsibility for

the death of the victims of the Grenfell Tower fire.

5. These public submissions focus on:

(a) The core obligations under Article 2 ECHR; the requirement to

conduct an effective investigation into deaths; the purpose of an

Article 2 investigation; the essential features of an Article 2

investigation; and the scope of an Article 2 investigation.

(b) The role of the Grenfell Tower Inquiry in discharging the Article 2

investigative duty.

(c) Participation of the survivors of the fire and the bereaved in the

Inquiry given (i) the requirements of Article 2 and (ii) the Equality Act

2010 (EA 2010).

(d) The constitution of the Inquiry panel.

6. As the Commission’s public statement explains, it also intends to address

issues relating to inhuman and degrading treatment, adequate and safe

housing, access to justice, children’s rights, and equality.

B. The Equality and Human Rights Commission

7. The Equality and Human Rights Commission is a statutory body established

under the Equality Act 2006. It operates independently to encourage equality

enables the Commission to conduct an investigation where it suspects that a person has committed an unlawful act under the Equality Act 2010.

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and diversity, eliminate unlawful discrimination, and protect and promote

human rights. It contributes to making Britain a fair society in which

everyone, regardless of background, has an equal opportunity to fulfil their

potential.

8. The Commission’s statutory duties include the duty to promote equality, the

duty to promote understanding of the importance of human rights, the duty to

enforce the Equality Act 2010 and the duty to encourage public authorities to

comply with their duties under the Human Rights Act 1998.3

9. The Equality and Human Rights Commission is an accredited National

Human Rights Institution, which means it is formally recognised by the

human rights treaty bodies of the United Nations. The Commission plays an

active role, in collaboration with the equality and human rights bodies in

Scotland and Northern Ireland, in monitoring the implementation of the UK’s

human rights and equality duties in international law and reporting to the

United Nations treaty bodies. As one of the National Human Rights

Institutions for the United Kingdom, the Commission has a statutory

responsibility to promote awareness, understanding and protection of human

rights. It is because of those responsibilities that the Commission has

decided to examine the circumstances surrounding the Grenfell Tower fire.

C. The core obligations under Article 2

10. Article 2 ECHR provides:

“(1) Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which the penalty is provided by law.”

11. The obligation under Article 2 ECHR has been characterised as “one of the

most fundamental provisions in the Convention”.4 It is a core guarantee of

3 Equality Act 2006, s.9(1).4 McCann v UK (1997) 21 EHRR 97, §147.

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the right to human dignity recognised in the Universal Declaration of Human

Rights.

12. Article 2 imposes positive duties on the State requiring it to put in place a

suitable framework of rules, arrangements and procedures, and to take

appropriate preventative operational measures with suitable supervisory

control, to safeguard and protect life. States must “afford general protection

to society”5 and “take appropriate steps to safeguard the lives of those within

its jurisdiction”, by doing “all that could have been required of it to prevent …

life from being avoidably put at risk”.6 Where State authorities know of a risk

to life and fail to take adequate steps to protect it, there may be a violation of

Article 2.7 The obligation to protect life is, of course, of direct relevance to the

events at Grenfell Tower on 14 June 2017 and the work of the Inquiry.

The Article 2 investigative duty

13. In addition to the substantive duties described above, Article 2 imposes a

corresponding duty on States to “hold an effective investigation into any

death where it appears that one or other of the state’s substantive

obligations has been, or may have been, violated and that agents of the

state are, or may be, in some way implicated”.8 This procedural obligation

operates to ensure that the rights guaranteed under the Convention are

practical and effective.9

14. The European Court of Human Rights has explained that the essential

purpose of an Article 2 investigation is a broad one: “to secure the effective

implementation of the domestic laws safeguarding the right to life and, in

those cases involving State agents or bodies, to ensure their accountability

5 Bljakaj v Croatia (2016) 62 EHRR 4, §108.6 Renolde v France (2009) 48 EHRR 42, §80.7 Osman v UK (200) 29 EHRR 245; Öneryildiz v Turkey (2005) 41 EHRR 20; Budayeva v Russia (2014) 59 EHRR 2.8 Al-Saadoon v SSHD [2015] 3 WLR 503, §17.9 Ilhan v Turkey (2002) 34 EHRR 36, §91. Similar investigative obligations may arise under the prohibition on torture, inhuman and degrading treatment in Article 3 ECHR. The Commission intends to address those obligations in separate public submissions.

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for deaths occurring under their responsibility”.10 The investigation must

therefore be “broad enough” to address “all the surrounding circumstances,

including such matters as the planning and control of the operations in

question … to determine whether the state complied with its obligation to

protect life”.11

15. Fundamentally, an Article 2 investigation is aimed at guaranteeing the right

to truth. International human rights law “underlines the great importance …

not only for [an] applicant and his family, but also for other victims of similar

crimes and the general public, who had the right to know what had

happened”.12 The right to truth applies not only to the direct victims of Article

2 violations and their relatives, but also to society at large.13

16. The purposes of an Article 2 investigation were summarised by Lord

Bingham in R (Amin) v Secretary of State for the Home Department [2004] 1

AC 653 (at §1). They are to ensure, so far as possible:

(a) that the full facts are brought to light;

(b) that culpable and discreditable conduct is exposed and brought to

public notice;

(c) that suspicion of deliberate wrongdoing is (if unjustified) allayed;

(d) that dangerous practices and procedures are rectified; and

(e) that those who have lost a relative have at least the satisfaction of

knowing that lessons have been learned from the death which could

save the lives of others in future.

17. A core purpose, too, of the Article 2 investigative duty is to prevent any

appearance of impunity. This is “essential in maintaining public confidence in 10 Al-Skeini v UK (2011) 53 EHRR 589, §163.11 Ibid.12 El-Masri v Macedonia (2013) 57 EHRR 25, §191.13 El-Masri v Macedonia (2013) 57 EHRR 25, §§175-179, 191.

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their adherence to the rule of law”, as well as “in preventing an appearance

of collusion in or tolerance of unlawful acts”.14 It is the importance of

maintaining public confidence in adherence to the rule of law, which explains

why there must be “a sufficient element of public scrutiny of the investigation

or its results to secure accountability in practice as well as in theory”.15

The essential features of an Article 2 investigation

18. An Article 2 investigation must have the following essential features:

(a) The investigation must be effective.

The investigation must be effective in the sense that it is capable of

leading to a determination of whether or not there has been a

substantive violation of Article 2. This is not an obligation of result,

but of means. The authorities must “take the reasonable steps

available to them to secure the evidence concerning the incident,

including inter alia eye-witness testimony, forensic evidence and,

where appropriate, an autopsy which provides a complete and

accurate record of injury and an objective analysis of clinical findings

including the cause of death”.16 Any deficiency in the investigation

which undermines the ability of the investigation to establish the

cause of death or the person or persons responsible will risk falling

foul of this standard.17

(b) The investigation must be independent.

The investigation must be undertaken by a person or body

independent of the State agents who may bear responsibility for the

death. Independence means the absence of a hierarchical or

institutional connection, but also “independence in practical terms”.18

14 El-Masri v Macedonia (2013) 57 EHRR 25, §192.15 El-Masri v Macedonia (2013) 57 EHRR 25, §192; Al-Skeini v UK (2011) 53 EHRR 589, §167.16 Al-Skeini v UK (2011) 53 EHRR 589, §166; Jaloud v Netherlands (2015) 60 EHRR 29, §186.17 Ibid.18 El-Masri v Macedonia (2013) 57 EHRR 25, §184; Al-Skeini v UK (2011) 53 EHRR 589, §167.

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(c) The investigation must be reasonably prompt.

The requirement of promptness is regarded as “essential in

maintaining public confidence in … adherence to the rule of law”.19 It

requires the State to act on its own volition once the matter has

come to its attention. The duty of promptness is crucial, given that

the passage of time “will inevitably erode the amount and quality of

the evidence available”, while “the appearance of a lack of diligence”

will both “cast doubt on the good faith of the investigative efforts” and

will “drag out the ordeal” for victims and their families.20 Whatever

specific mechanism is chosen by the State, it must involve the State

taking, as a matter of priority, “all necessary and appropriate

measures to ensure … that the procedural requirements of art. 2 are

complied with expeditiously”.21

(d) The next of kin must be involved to an appropriate extent.

The Article 2 investigation must be public and accessible to the

victim’s family.22 The victim’s next of kin must be involved in the

procedure “to the extent necessary to safeguard his or her legitimate

interests”.23 This is issue is addressed further below.

(e) There must be a sufficient element of public scrutiny.

The rule of law requires that there must be a sufficient element of

public scrutiny of the investigation or its results in order to “secure

accountability in practice as well as in theory”.24

The scope of an Article 2 investigation

19 Al-Skeini v UK (2011) 53 EHRR 589, §167.20 Edwards v UK (2002) 35 EHRR 19, §86.21 McCaughey v UK (20114) 58 EHRR 13, §145.22 Al-Skeini v UK (2011) 53 EHRR 589, §174.23 Al-Skeini v UK (2011) 53 EHRR 589, §167.24 Al-Skeini v UK (2011) 53 EHRR 589, §167.

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19. In light of the scope of the positive and investigative obligations, an Article 2

investigation must be capable of addressing broader issues of State

responsibility, including systemic issues. The investigation must therefore be

broad enough to address “all the surrounding circumstances … to determine

whether the state complied with its obligation … to protect life”.25 It must

cover such matters as training, policies and practices, and failures of

supervision or inspection, and it must include “lessons learned”.26

D. The role of the Grenfell Tower Inquiry in discharging the Article 2 investigative duty

20. It seems likely that it is intended that the Grenfell Tower Inquiry will be

largely responsible for discharging the State’s investigative obligations under

Article 2, so far as it applies to the deaths of those who died in consequence

of the fire at Grenfell Tower (see by analogy, the Mid-Staffordshire NHS

Foundation Trust Public Inquiry). 27

21. It is against this background that the Inquiry must keep under review its

terms of reference, and the list of issues to be investigated.

22. Many of the issues currently raised in the Inquiry’s terms of reference

contemplate State responsibility for many of the matters leading up to the fire

and afterwards. There are likely to be other issues which the Commission

will wish to seek to draw to the Inquiry’s attention throughout the process,

including whether relevant public bodies provided adequate information

about fire safety to the residents, whether residents were able effectively to

access the legal system to raise concerns about fire safety, the

consequences of changes to legal aid funding for the accountability of

landlords and local government and compliance by relevant public bodies

with their duties under the EA 2010, including the public sector equality duty,

among other things.

25 Al-Skeini v UK (2011) 53 EHRR 589, §163.26 Al-Skeini v UK (2011) 53 EHRR 589, §174.27 See Inquiry Report, Volume II, §§13.149-13.151.

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23. The Commission has some concerns about the narrow scope of the terms of

reference and list of issues, in light of the questions that are likely to arise in

investigating the possibility of State responsibility. The Commission

welcomes the Inquiry’s indication that the terms of reference are not

intended to limit its ability to “pursue any avenue of investigation which it

considers appropriate”, and that the list of issues is not intended to be

prescriptive, and that it “may be subject to revision during the course of the

inquiry”. This is critical to ensure that the Inquiry is capable of effectively

determining whether or not there has been a substantive violation of Article

2, a key requirement of the Article 2 investigative duty.

E. Participation by survivors and bereaved

24. As referred to above, critical to discharging the State’s obligation under

Article 2 is the proper and effective participation of the survivors, bereaved

and former residents of Grenfell Tower and surrounding blocks. This will be

necessary to ensure that all relevant evidence is heard, but it is also

necessary to ensure the legitimacy of the process.

25. The corollary of the State’s duty to ensure participation is a right enjoyed by

survivors and bereaved to participate. For that right to be effective, the

Inquiry must be organised and conducted in a way which allows for survivors

and bereaved to effectively participate.

26. In addition, the EA 2010 imposes specific obligations on public authorities

that require steps to be taken to ensure equality, and these will be applicable

to certain of the Inquiry’s functions.

27. In particular, the EA 2010 prohibits public authorities from discriminating

against members of the public when exercising a public function.28 The

prohibition extends to (as is most relevant) indirect discrimination29 and a

failure to make reasonable adjustments for disabled persons.30

28 Section 29, EA 2010.29 Section 19, EA 2010.30 Sections 20-21, EA 2010.

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28. Indirect discrimination occurs where in the exercise of a public function an

unjustifiable practice is adopted which disadvantages a protected group/s.

Groups protected by the EA 2010 include groups defined by reference to

ethnicity, gender, disability and religion.

29. The duty to make reasonable adjustments requires public authorities to

modify practices and arrangements and provide auxiliary aids (such as

hearing loops, among others), where reasonable, to avoid or mitigate

disadvantages that would otherwise be experienced by disabled people. The

duty is an anticipatory duty which means the Inquiry cannot wait to see

whether a disabled person/s may wish to participate but instead must take

reasonable steps to address any disadvantages that might foreseeably arise.

30. Further, public authorities are subject to the PSED. The PSED requires that

a public authority must, in the exercise of its functions, have due regard to

the need to (a) eliminate discrimination, harassment, victimisation and any

other conduct that is prohibited by the EA 2010; (b) advance equality of

opportunity between persons who share a relevant protected characteristic

(including ethnicity, disability and gender) and persons who do not share it;

and (c) foster good relations between persons who share a relevant

protected characteristic and persons who do not share it. Having due regard

to the need to advance equality of opportunity between persons who share a

relevant protected characteristic and persons who do not share it involves

having due regard, in particular, to the need to (a) remove or minimise

disadvantages suffered by persons who share a relevant protected

characteristic that are connected to that characteristic; (b) take steps to meet

the needs of persons who share a relevant protected characteristic that are

different from the needs of persons who do not share it; and (c) encourage

persons who share a relevant protected characteristic to participate in public

life or in any other activity in which participation by such persons is

disproportionately low. The steps involved in meeting the needs of disabled

persons that are different from the needs of persons who are not disabled

include, in particular, steps to take account of disabled persons’ disabilities.

Having due regard to the need to foster good relations between persons who

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share a relevant protected characteristic and persons who do not share it

involves having due regard, in particular, to the need to (a) tackle prejudice,

and (b) promote understanding.

31. The PSED applies to all bodies exercising public functions.31 It is likely to be

of relevance to the Inquiry when it is scrutinising the actions of the public

authorities involved and whether they performed their functions properly. It is

also of relevance to the functions of the Inquiry itself since, in respect of

many aspects of its work, the Inquiry will have to ensure that it takes the

steps required by the PSED.

32. For the purposes of Article 2 and the EA 2010, it is important, therefore, that

the Inquiry take positive steps to ensure that all those with an interest in the

Inquiry can participate equally and effectively. This means that the Inquiry

must consider ensuring that:

(a) Important documents produced by the Inquiry are available in a

variety of languages (to include the main languages spoken by the

survivors and bereaved, and in braille);32

(b) Translation facilities are available during the course of the hearing

(to include the main languages spoken by the survivors and

bereaved, and British Sign Language);

(c) The premises in which hearings are held are accessible to all. This

means that the building in which hearings are held must be

physically accessible for those with mobility or sensory impairments,

wheelchair users and those with buggies or similar. It must also be

geographically accessible; that is, there must be proper transport

links and the Inquiry hearing venue should be close enough to where

31 Section 149(2), EA 2010. This means that even if the body is not “a public authority” listed in Sch 19, EA 2010 (see, section 150), it is subject to the PSED if and when exercising public functions. Sch 19 identifies those “public authorities” to which the specific duties under section 153 can be imposed, an issue which does not arise here.32 The Commission believes that the inquiry is taking steps to ensure that the important documents it produces are available in several languages.

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participants live (in the area of Grenfell Tower) to enable their

attendance and participation;

(d) Those with caring responsibilities have the opportunity to participate.

This may mean ensuring that childcare facilities are available and in

certain circumstances, caring facilities for dependents with

disabilities; and

(e) Arrangements are in place to allow for religious observance (and this

may involve appropriate timetabling/spaces for religious worship).

33. Adopting practices for the Inquiry which do not include these steps may

constitute indirect discrimination and violate the duty to make adjustments

and the PSED.

34. The prohibition on discrimination, the duty to make reasonable adjustments

and the PSED do not apply to the carrying out of a “judicial function”.33 This

expression is not defined by the EA 2010. However, it should not be afforded

too wide a meaning not least because to do so may frustrate the effect of

applicable international human rights laws which require courts to ensure the

proper participation of groups who might be disadvantaged by the

arrangements in place. These obligations include Article 14, ECHR which,

read with Article 2, requires the Inquiry to take positive steps to secure

proper participation for groups that would otherwise be disadvantaged. They

also include the obligations under the UN Convention on the Elimination of

All Forms Racial Discrimination,34 the UN Convention on the Elimination of

All Forms of Discrimination Against Women35 and the UN Convention on the

Rights of Persons with Disabilities.36

35. The Commission submits, therefore, that the expression “judicial function”

should be understood to cover those acts done “upon consideration of facts

33 Schedule 3, para 3, EA 2010 and Sch 18, para 3.34 Article 2.35 Article 2.36 Articles 4, 5, 9 and 13.

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and circumstances, and imposing liability or affecting the rights of others”37

but not organisational matters however important they may be to the

functioning of the Inquiry.

36. Adopting a course which is not over-technical but complies with the

substance and purpose of these legal duties in any event will ensure that the

Inquiry does not risk acting unlawfully but also, equally importantly, that the

Inquiry demonstrates proper respect for the dignity and humanity of the

survivors and the bereaved.

F. The constitution of the Inquiry

37. The functions of a public inquiry can be deduced from the circumstances in

which one might be established, namely where “particular events have

caused … public concern”.38 Those functions include, therefore, allaying

public concern and restoring public confidence, as well as getting to the truth

about the events that have caused public concern. The constitution of any

inquiry panel will be critical to achieving those ends.

38. The breadth of those functions is such that though legal and forensic

expertise on the part of the panel will always be essential, it may not be

sufficient. This may be the case where, for example, (i) the judgement

required to be exercised in the discharging of those functions depends upon

knowledge and experience of broad social realities and (ii) the allaying of

public concern will only be achieved with a panel that is able to contribute

something other than mere legal and forensic expertise.

39. In the context of this Inquiry, the Commission considers that a panel with

professional experience of the broader social issues that are likely to

become material (if not central) during the Inquiry is essential. Knowledge

and experience of the affected communities and the diversity within them

and the way in which such communities are commonly served by public

37 D Greenberg, Strouds Judicial Dictionary of Words and Phrases Vol 2: F–O (7th edn., 2006, Sweet & Maxwell), 1428.38 Section 1, Inquiries Act 2005.

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authorities is likely to be of exceptional importance if the Inquiry is to

effectively perform its functions.

40. The communities affected will include ethnically diverse groups, women,

children, people of faith, migrants, disabled people, and economically and

socially disadvantaged people.

41. The Commission submits that to ensure that the Inquiry is properly effective

in allaying public concern, restoring public confidence and getting to the

truth, it should be constituted by a panel which includes members with

knowledge of those communities and their experiences.

42. The Commission recognises that the Inquiry panel chair cannot himself

appoint panel members. The power to appoint panel members lies (in this

instance) with the Prime Minister. However, the Commission urges the chair

to make representations to the Prime Minister to appoint additional members

in order to address the need for a panel constituted in the way described

above.

KARON MONAGHAN QCMatrix Chambers

JASON POBJOYBlackstone Chambers

ELIZABETH PROCHASKACLARE COLLIERSARFRAZ KHANEquality and Human Rights Commission 18 DECEMBER 2017

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