Can the Grenfell Inquiry be a truly modern public inquiry?

22 May 2018 by Suzanne Lambert

The wedding of Prince Harry to Meghan Markle and the start of the first phase of hearings in the Grenfell Inquiry occurred within hours of each other but could not have been more different in terms of how they were received by the British public.

By welcoming into its ranks a biracial, divorced, professional American actress, the Royal Family appears to have gained some much needed legitimacy, and the very modern Royal wedding, undeniably a celebration of diversity, is perhaps a sign that this bit of the British Establishment is moving with the times.

The start of the Grenfell Inquiry — almost a year after the fire on 14 June 2017 which claimed 71 lives — has not been met with such optimism nor enjoyed such accolades. Instead, from the moment the question of who would chair it arose, the Inquiry has been dogged by accusations of “whitewashing”, a persistent failure to listen to the victims and bereaved, and a failure to give them a proper voice.

Is there any hope that the Grenfell Inquiry will finally gain legitimacy? As with the successful McPherson Inquiry following the Stephen Lawrence murder, recognition of diversity and inclusivity are essential.

Pressure for a Diverse Panel

When retired Court of Appeal judge, Sir Martin Moore-Bick, was named as Chairman of the Inquiry, the announcement was met with much criticism, with lawyers, campaign groups, and MPs calling for Sir Martin to quit. Opposition Leader, Jeremy Corbyn, argued that a diverse Panel would “help to both build trust and deliver justice” and Labour MP, David Lammy, went so far as to suggest that a “white, upper-middle class man” who had possibly never visited a tower block might not be able to “walk with these people on this journey”.

In announcing the Terms of Reference, the Prime Minister indicated that, at that stage, she had not appointed any other members to the Inquiry Panel but she noted that the Inquiries Act 2005 did allow for such appointments to be made with the consent of Sir Martin, during the course of the Inquiry, so that the composition of the Inquiry Panel could be “kept under review”.

R (ota Mr Samuel Daniels) v The Rt Hon Theresa May, the Prime Minister & Sir Martin Moore-Bick [2018] EWHC (1090) Admin — read judgment

On various dates commencing in September 2017, solicitors representing Mr Daniels, the son of an elderly disabled man who died in the Grenfell fire wrote to Sir Martin, the Solicitor to the Inquiry, and the Prime Minister, asking whether the Prime Minister would exercise her powers under s7 of the Inquiries Act to appoint a panel to sit alongside Sir Martin.

The point was made that there was need for assessors (under s11) to advise the Chair on particular issues on which he lacked expertise was distinct and different from the power to appoint a panel. Reference was made to the first report of the Public Administration Select Committee in 2005, which considered the principles of good inquiry practice in matters of public concern, and which recommended the use of panels in politically sensitive cases. The Committee advised that panels were “a non-statutory means of enhancing the perception of fairness and impartiality in the inquiry process”. It was argued that the Grenfell Inquiry was exactly the sort of case that required a panel:

Any public perception, particularly by those directly affected by the fire, that the Inquiry process fails to reflect fairness, balance, diversity and impartiality will render its effectiveness significantly compromised from the outset. There is currently a lack of trust in the Inquiry which threatens to undermine fundamentally the likelihood that its findings and recommendations will be accepted, and also to prevent it from playing a role in healing the deep trauma stemming from this event.

[…]

The appointment of a wider panel to share decision making powers with the Chair, composed of a greater diversity of people who properly understand the issues facing those affected, could go a long way in ensuring that survivors, the bereaved and the general public have confidence in the Inquiry process.

The Prime Minister finally communicated her decision not to appoint additional panel members in a letter to Sir Martin dated 21 December 2017. She expressed her concern that the Inquiry complete its initial report “as quickly as reasonably possible” and explained that, at that stage, having regard to the assistance that may be provided by the assessors already appointed and the Inquiry’s Terms of Reference, the Inquiry had “the necessary expertise to undertake its work”.

Mr Daniels sought to challenge this decision on the following grounds:

1. The Prime Minister misdirected herself by considering that the maintenance of public confidence was not a key or prime factor for promoting the statutory purpose of the 2005 Act.
2. The Prime Minister misdirected herself by considering that the procedural duty under Article 2 of the ECHR was irrelevant.
3. The Prime Minister had failed to provide adequate reasons and to engage with the representations and evidence filed by the claimant regarding public confidence.
4. The Prime Minister failed to comply with the public sector equality duty (“PSED”) under Section 149 of the Equality Act 2010.

 The decision was robustly defended in Summary Grounds of Defence and, following consideration of the application on the papers by a High Court judge on 19 March 2018, permission was refused.

Refusal of Permission

Mr Daniels renewed his application for permission in an oral hearing before Lord Justice Bean and Mr Justice Edis on 4 May 2018. In pure legal terms and on public law grounds, the challenge was unarguable and permission was refused. Bean LJ gave the following reasons in his detailed written judgment:

1. The Inquiries Act did not state that a panel consisting of a chairman and other members “is more desirable in the interests of balance in the diversity sense than an inquiry panel consisting of a chairman alone”. The Act expressly mandated only two factors to be taken into account: a prohibition on appointing anyone with a direct interest in the subject matter or a close association with an interested party (s9); and the need to ensure that the panel (considered as whole) has the necessary expertise to undertake the inquiry (s.8(1)(a)). For the purposes of s.8(1)(a), s.8(2) provided that the minister may have regard to the assistance that may be provided by any assessor appointed. In the event that a panel is appointed, s.8(1)(b) requires the minister to have regard to the need for balance (considered against the background of the terms of reference) in the composition of the panel. The weight to be attached to a material factor or consideration is one for the decision-maker, which can only be challenged on grounds of irrationality. It could not arguably be said that the decision to appoint Sir Martin without a panel “was outside the range of rational decisions in the circumstances of this case” (paragraphs 28-35).
2. Although Article 2 of the ECHR was indisputably relevant in this case, it is about “issues of independence, not issues of diversity”. There was no authority for “the proposition that Article 2 requires any particular composition of the investigating body other than it should be independent and impartial” (paragraphs 36-39).
3. Although the decision itself provided relatively brief reasons for the Prime Minister’s decision, the Summary Grounds of Defence provided more detailed reasons, which were entirely consistent with the original reasons in the decision letter. It was not necessary for the Prime Minister to rehearse in detail the arguments made on behalf of the Claimant in correspondence and to respond to them in similar detail (paragraphs 40-42).
4. The Prime Minister had had regard to the PSED. There was no duty to make express reference to the regard paid to the PSED. Once the court is satisfied that there has been “rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them”, it is for the decision-maker to decide how much weight should be given to the various factors (paragraphs 43-44).

A Face-Saving Solution?

So, the decision was legally beyond attack, but was it the right decision?

Bean LJ made clear that it was not for the court “to second guess the decision by saying whether [it] would have reached the same decision” (paragraph 45).

However, he offered some helpful commentary (at paragraphs 46-48) when he highlighted the “persuasive arguments” in favour of the appointment of a panel but also recognized that the Prime Minister was “entitled to take into account, as an urgent consideration, the need for the Inquiry to complete its initial report as quickly as reasonably practicable” given the urgent need to establish the facts as to how the tragedy occurred and to make recommendation to minimize the risk of such a catastrophe recurring (the basis of the decision for Phase 1 of the Inquiry to deal with those issues).

He indicated that the Prime Minister’s decision was not to appoint a panel at this stage. However, he would not express a view as to “what the position would be if an application were to be made for additional panel members to be appointed to sit with Sir Martin during Phase 2 of his Inquiry, which will consider a large number of issues and where different considerations might arguably apply”.

Bean LJ’s obiter comment may well have offered some solace and hope to the Claimant, but it may also have provided a valuable hint as to a way out of what was swiftly becoming a political impasse and potential PR disaster for the Inquiry.

The Announcement of a Panel for the Second Phase

Bean LJ’s refusal of permission in the Administrative Court received little media attention. However, scarcely one week after the unsuccessful oral permission hearing, it was announced that the Prime Minister had decided to appoint a Panel to sit with Sir Martin in Phase 2 of the Inquiry.

In clear recognition of the mounting public and political pressure for the appointment a diverse panel, but possibly also in recognition of the concluding comments of Bean LJ, the Prime Minister wrote to Sir Martin as follows on 10 May 2018:

I hope this decision will provide reassurance to victims and the survivors of the fire, the local community, and members of Grenfell United, who have been clear with me and the Minister for Grenfell Victims, Nick Hurd, that you are the right person to lead this inquiry but who also believe that, in Phase 2, it would be beneficial to have additional panel members.

The Prime Minister will no doubt be keen to avoid an Inquiry report that is sidelined or seen to be a whitewash, a fate that seems to have befallen Dame Judith Hackitt’s Independent Review into building regulations and fire safety following the Grenfell tragedy.

Like Sir Martin’s, Dame Judith’s appointment was regarded as lacking legitimacy, notwithstanding her expertise and her detailed 156 page report was met criticism that she simply “had not listened”; that her report was a “huge wasted opportunity” and a “whitewash”; and was upstaged by an announcement by Government that, “having listened carefully” to concerns, there would be a consultation on banning inflammable cladding.

Conclusion

The modern Royal Wedding was a powerful reminder of how legitimacy can be gained through recognition of diversity and inclusivity.

One of the questions the Inquiry and the Prime Minister must surely be asking as Phase 1 begins is how the Inquiry can finally gain some much-needed legitimacy by appointing the right Panel members to reflect the concerns of the victims and families and finally give them the voice they deserve.

Phase 2 is not scheduled to begin before the end of the year, so there is good time to consider carefully who to appoint to the Panel. Meghan Markle may not be the answer here, but the Prime Minister will have to take into account not only the suitability considerations set out in section 8 of the Inquiries Act, but also the various concerns of the victims and their families.

Suzanne Lambert is a barrister at One Crown Office Row.