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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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