Grenfell Tower: was the cladding really banned material?

So, was London’s Grenfell Tower, scene of a horrific fire that killed dozens of people, covered in “banned” flammable cladding?   The  answer – worryingly – is probably no. And if that is the case, it exposes the shocking flaws in Britain’s regulatory system for high-rise developments.

The Department of Communities in initially answering this question – before any tests were made on the actual material – said this: “Cladding using a composite aluminium panel with a polyethylene core would be non-compliant with current Building Regulations guidance. This material should not be used as cladding on buildings over 18m in height.”

But this is not the case. Such cladding – described officially as “material of low combustibility” (MOLC) is lawful and recommended above 18 metres, as is the more fire-resistant cladding described officially as “non-combustible”. Composite aluminium panel with a polyethylene core may well meet the standard as MOLC. So, as long as the suppliers didn’t do some sort of substitution with inferior stuff, such panels are lawful.

This is what the government Building Regulations of 2010 vol 2 actually say:

12.5 The external envelope of a building should not provide a medium for fire spread if it is likely to be a risk to health or safety. The use of combustible materials in the cladding system and extensive cavities may present such a risk in tall buildings.

This gives a hint of the rather vague regulatory framework that applies to materials in buildings – almost a statement of the obvious, leaving suppliers, builders and inspectors simply to do their best to ensure safety. As to cladding for high-rise blocks, the document goes on to say:

“Insulation Materials/Products
12.7  In a building with a storey 18m or more above ground level any insulation product, filler material (not including gaskets, sealants and similar) etc. used in the external wall construction should be of limited combustibility (see Appendix A).”

So this is where DCLG got it’s 18 metres from. But by no means is this a ban on the sort of material (probably) used on Grenfell Tower. Indeed “limited combustibility” is the standard for this sort of work. The guidelines do not even suggest using the higher standard “non-combustible” material.

The test used is to apply flames to the surface (not the polyethylene core) of the panels. Here is what a manufacturer of building materials (not those used on Grenfell Tower) has to say by way of explanation of the standard:

“It is important to note that a Surface Spread of Flame Classification does not infer [ie imply] any resistance to combustibility; it is solely a measure of the spread of a flame across the material’s surface.” (Rockwool Ltd, page 4).

Yet that is sufficient to meet the standard. It concludes that for the builder or developer: “The first and by far least restrictive option is to use materials of limited combustibility (MOLC) for all elements of the cladding system that are situated both above and below 18m.”

It is “least restrictive” because in effect it is pre-assessed as being acceptable for this sort of job: it reaches an “EN reaction to fire classification” of A2. Otherwise the developer would have to go through a process of getting clearance for the materials it wants to use from the independent testing body, UKAS (the BS8414 Test which would produce a report showing the BR135 specification has been met – see below.)

So above 18 metres “material of low combustibility” (MOLC) is standard. And, of course, “non-combustible” material could be used too (A1 on the reaction to fire classification). This is the material, that would, according to some news reports, cost only £2 a square metre more than the Reynobond PE aluminium with polyethylene core cladding apparently ordered for Grenfell  Tower.

Suppliers Omnis Exteriors said they were asked for Reynobond PE cladding, which is MOLC. This aluminium composite material (ACM) would have met the standard, designated “Class 0 rating for the surface spread of flame” and the A2 “reaction to fire classification” – accepted as suitable for this use.

Similarly the Celotex RS5000 infill lagging behind the panels, found to be flammable in new tests after the fire, is according to the manufacturers:

“a premium performance PIR insulation board that: Has been tested to BS 8414-2:2005, meets the requirements in BR 135 and the first PIR insulation suitable for rainscreen cladding applications above 18 metres in height; Features Class O fire performance”.

So the Reynobond PE is apparently legal (and presumably the Celotex is too, again on a “low combustibility” basis). But should it be? The material is lab tested for the effect of flames to its aluminium surface, not in situations when it might be broken through to the core or in high temperatures under which the aluminium would burn through.

It certainly should not be legal, according to Phil Barry, managing director of CWB fire safety consultants in Gloucestershire. who told the Guardian:

“We need to do full-scale tests to see how these materials perform in the real world. In a full-scale test, the outside sheet fails, and it exposes the plastic core, which then burns. That’s what causes the problem. We should be saying no combustible materials on buildings above 18m.”

Comment
This whole issue is complicated and no one should think that this post has got to the bottom of those complexities. But it is clear that thinking in terms of a cladding having been “banned” is wrong – and does not begin to address the full issues about Grenfell Tower and all the other such tower blocks with similar issues.

The regulations are composed in “risk to health and safety” terms rather than specifying what is safe and what isn’t. The safety of legal cladding has to be considered in the light of other issues: exits, fire doors, corridors providing (or failing to provide) escape routes, whether fire engines can get there – and the fact that the use people put the buildings to can easily undermine such safety precautions – or the extent to which vulnerable people are housed there. So it is significant that those decanted from Camden flats after the Grenfell Tower fire were asked to move because of suspect gas fittings and faulty fire doors rather than unsafe cladding.

MOLC may be deemed adequate and lawful but only in the context of other issues – creating a mountain of regulatory complexity which explains why tragedies like Grenfell Tower keep happening.

So the regulations (Part B) say:

“0.4 Whilst guidance appropriate to each of these aspects is set out separately in this document, many of the provisions are closely interlinked. For example, there is a close link between the provisions for means of escape (B1) and those for the control of fire growth (B2), fire containment and/or suppression (B3) and facilities for the fire and rescue service (B5) … Interaction between these different requirements should be recognised where variations in the standard of provision are being considered. A higher standard under one of the requirements may be of benefit in respect of one or more of the other requirements. The guidance in the document as a whole should be considered as a package aimed at achieving an acceptable standard of fire safety.”

The Grenfell Tower panels themselves may have been legal ie compliant with the relevant standard – but their use may not have been because of the context in which they were used. The condensation void between the lagging and the panels may have increased the intensity of the fire, for example; there is a suggestion that the creation of corner patterns using the panelling may have been problematic (similarly funnelling and intensifying the flames at that point perhaps?). Were window frames of the right standard? Were the cladding panels slotted together without separators that would have inhibited the flames? Are there sprinklers in place (the regulations added this in 2007: “Sprinkler systems should be provided in blocks of flats exceeding 30m in height”). Is there more than one set of stairs for escape? (In Grenfell Tower the answer is no.)

We can be pretty certain that what happened at Grenfell Tower was illegal – simply because of what happened at Grenfell Tower. It’s a circular logic. The regulations are outcomes-based rather than prescriptive – see 12.5 quoted above: the cladding “should not provide a medium for fire spread if it is likely to be a risk to health or safety”. We know something has gone horribly wrong – but it will be very difficult to establish who is to blame.

Twitter: alrich0660

Note. BBC’s World at One has now established that the Government has ordered that the new tests on cladding around the country should be interpreted to include the polyethylene core in determining whether they are made of “material of low combustibility”, not just the surface. Large numbers of the panels, perfectly legal until now (having passed under BS476), are failing this more rigorous test. (BBC WATO 26 June 2017 at 19.30 minutes.)

So this raises a significant financial issue: who should pay for removing what was legal cladding and putting up the new material: councils, who have paid millions to clad their buildings already? Tenants – many of whom will be right to buy long leaseholders who have also contributed to cladding previously – will they be stung for the upgrade too? Or the Government, which seems clearly to have botched the whole regulatory scheme from the offset?

Also: experts have criticised the new government tests that are failing huge numbers of cladding panels, which seem to involve simply setting fire to the polyethylene core and declaring it as failed because it burns (obviously). See the Guardian. The manufacturers of Reynobond PE have withdrawn the material from worlwide sale citing the inconsistency of regulatory regimes (the Guardian).

Materials  
• This piece from Reuters suggests the Reynobond supplied for Grenfell Tower wasn’t lawful for the building but notes:

“Some safety experts say the regulations are not black and white. The UK uses a ‘principles-based’ approach to regulation which puts an onus on companies to operate safely, based on common understanding of risks and the technology available. This differs to the highly specific ‘rules-based’ approach to regulation taken in the United States. Supporters of the principles-based approach say it avoids the emergence of loopholes and means companies have to take account of new information on risks immediately, rather than wait for a new regulation to be drafted.”

• However a useful piece from Building Design here notes:

“A building over 18m tall must use materials with a classification of B-s3 or better. This suggests both types of Reynobond panel would meet the requirements of Part B for the flammability of external cladding.”

It also says, though, that this is contradicted elsewhere in the regulations where it says over 18 metres it must have a higher rating – A2 or better – which it describes as non-combustible (rather than low combustibility).

• This item describes the European classification system.
• This article from Probyn Miers gives a lot of detail on similar high rise fires. It notes:

“In the UK since 2006, under the Regulatory Reform (Fire Safety) Order 2005 (“FSO”), building owners, employers and occupiers have been legally obliged to evaluate fire risk in all buildings other than private dwelling houses.  The FSO is applicable to apartment blocks with common entries, staircases and landings.”

• This from University of Kent Countercurrents suggests social housing has become unmanageable.

Government standards: External fire spread
B4. (1) The external walls of the building shall adequately resist the spread of fire over the walls and from one building to another, having regard to the height, use and position of the building.

External walls
B4.i The construction of external walls and the separation between buildings to prevent external fire spread are closely related. The chances of fire spreading across an open space between buildings and the consequences if it does, depend on:
a. the size and intensity of the fire in the building concerned;
b. the distance between the buildings;
c. the fire protection given by their facing sides; and
d. the risk presented to people in the other building(s)

B4.ii: Provisions are made in Section 12 for the fire resistance of external walls and to limit the susceptibility of the external surface of walls to ignition and to fire spread.

B4.iii Provisions are made in Section 13 to limit the extent of openings and other unprotected areas in external walls in order to reduce the risk of fire spread by radiation

BR135 include the following:
■ External and Internal Fire Spread – determined by a 600ºC rise in temperature on the external/internal face of the building (measured at a point approximately one storey above the fire floor) for thirty seconds or more during the initial fifteen minutes of the test.
■ Mechanical Performance – determined by an assessment of building collapse, spalling, delamination, flaming debris or fire pool.

 

Great Repeal Bill Brexit row: Keep Henry VIII’s name out of it

One wonders whether the outrage over the “Great Repeal Bill” has been a little overdone. The White Paper explaining how the UK Government will handle all the mass of EU legislation that needs to remain in place after Brexit notes that much of it, while remaining in force, will need “correcting” by delegated legislation – powers given to ministers by Parliament. 

The White Paper explains that this correcting will simply be to ensure the laws, all of which will be transposed into UK law, can continue to operate rather than become ineffective upon repeal of the European Communities Act 1979. Critics fear the Government will go further than this and use delegated legislation, or “Henry VIII powers”, to actually change or abolish laws and rights derived from the EU.     

But this post is more concerned about whether the respectable name of King Henry has been blackened by being dragged into this sordid modern row. “Henry VIII powers” are quite often included in parliamentary legislation (increasingly and controversially of late) to allow a minister to later change the statute by issuing a statutory instrument. 

The name (or nickname, really) of the powers has been mistakenly taken rather literally by some parts of the media with suggestions that the powers, legitimately given by a democratically elected Parliament, are actually derived from the despotic Henry VIII himself, that the Government has dredged up some arcane pre-democratic power and is about to swing Henry VIII’s very own axe to abolish EU law. Thus the Evening Standard: “Ministers defended so-called Henry VIII clauses dating back to 1539”. CNN took a similar line: “The British government wants to invoke controversial powers that date back 500 years to the time of King Henry VIII.” The Independent called them “ancient powers”. This is simply untrue.

What if James Eadie was right about Brexit?

Pity poor James Eadie QC, the lawyer tasked with swaying at least six Justices of the UK Supreme Court to his rather unappealing view that David Davis can sweep away 40-odd years of EU rights with the scrawl of his crabbed hand on an Article 50 notice.      

When smooth-as-silk Silk Lord Pannick stood to address their Lordships and Ladyship in the Gina Miller Brexit case, one could sense the hearts aflutter and knees atremble in chambers up and down the country as he caressed the precedents and drove his points home with firm but gentle force. Expect the CSI-effect to kick in during the next round of university applications – an upswing in applications to law schools from 18-year-olds who suddenly really want to be constitutional lawyers. There is, in contrast, no such thing as the Eadie effect.     

Where Pannick was a gallant schooner expertly managing the light zephyrs wafted his way by the assembled justices, deftly avoiding the gentle sandbanks and glittering coral reefs to reach his haven, Eadie was an oil-bespattered tramp steamer buffeted by blizzards, bouncing of rocks and barely making it into port.   

He found his craft beached in his final gasping moments on a very poor (and probably unconstitutional) point in which he seemed to suggest the Justices check what MPs had been doing in the Commons the night before (passing the Brexit motion) and somehow take it into account in their judgment.   

But what if (one can put it no higher) – what if Eadie turns out to be right? Even half right might be good enough. So, what does his somewhat incoherent case amount to?  

Bedroom tax case: don’t forget the ECHR

Not enough has been said about the human rights legal dimension to the successful bedroom tax cases in the Supreme Court. It is important for two reasons:

1. The cases succeeded thanks to Britain’s adherence to the European Convention on Human Rights where homegrown “British” law was unable to help (apart from the Human Rights Act, giving access to ECHR remedies). Neither English Common Law nor British parliamentary anti-discrimination legislation could assist either the Rutherfords or Jacqueline Carmichael gain exemption from having housing benefit docked  for their “extra” bedrooms.
2. An earlier judgment of one of the cases, when it came before Lord Justice Laws, was intended to place a clear marker down discouraging such  cases based on ECHR rights on the grounds that “the courts are not the proper arbiters of public controversy”. The Supreme Court has therefore repudiated Laws’ attack on ECHR remedies.

The legal cases
The cases challenged the bedroom tax regulation on the grounds that it failed to give entitlement to an extra bedroom (without having housing benefit reduced) in cases where the bedrooms were needed for disabled people. The regulation restricts exemptions to “a relevant person … who requires overnight care; or a relevant person [who] is a qualifying parent or carer” (Regulation B13 (6). The relevant person (in paragraph 9) is the housing benefit claimant, his/her partner or another person liable to pay rent and his/her partner (see regulations below in full). But, as Lord Toulson noted in the latest case: “A person who requires overnight care is defined in Reg 2(1) in terms which have the effect of not including any child”.

1297 And All That: how to impress a Brexit judge

Turned down the chance to take the option on Medieval Law during your time as a legal scholar? Bad move. Ancient precedents are now cool – and the best way to impress our top judges when they are considering tricky matters such as the Brexit wrangle.

One of the teams in the Gina Miller/Dos Santos Brexit case came up with material going all the way back to 1297 to support their contention that Theresa May didn’t have power to start Brexit by issuing an Article 50  notification. But were they, how can one say it, a little economical with the historicité?

Helen Mountfield QC, for the People’s Challenge, said Henry IV had tried to suspend a 1297 Act which allowed foreigners to trade in London:

“So this is an example, which is right on point, an Act which provides for freedom of movement and establishment of foreign merchants. The Crown doesn’t purport to repeal this act; it simply frustrates its purpose by a decree which makes the intended purpose of the Act unenforceable for a particular period of time. The law itself which is referred to there has been, I think, tracked down by the industries of my friend Ms Simor QC, the law of 1297 at bundle E1, and it is perhaps unsurprising that it was Henry IV who wanted to ‘kill all of the lawyers’.”  Second day of case; digest here. 

This writer, of course, cannot pretend to have access to their lordships bundles. However one assumes that the 1297 Act must be Magna Carta – the Edward I inspeximus* re-issue, not the 1215 original. Strictly speaking it is a treaty (between the King and his people – or those who mattered) rather than an Act of Parliament but it was also enacted into law. It remains on the statute books, what’s left of it, and can be found here. But it wasn’t exactly the act of a “sovereign parliament” as we know it today.

The Brexit court case (Miller/Santos): Link to extracts

Our sister blog Thinking Legally has published digested versions of the Brexit High Court case R (Miller and Santos) v Secretary of State for Exiting the European Union. 

First day: Thinking Legally 1

Second day: Thinking Legally 2

Third day: Thinking Legally 3.

Here are some Brexit pieces on Al’s Law.

The High Court case: full (uncorrected) transcripts
The first day transcript 13 Oct of the Miller/Santos court case is here (MoJ pdf).
• The second day transcript: Full day transcript for 17 October 2016.
• Third day Full day transcript for 18 October 2016.
• All available at the Ministry of Justice

The High Court case has now been superseded by the Supreme Court case (December 2016). Transcripts and other material can be found here on the Supreme Court site. A report/analysis of the Supreme Court case is here: What if James Eadie was right?

The Brexit High Court case: actually Parliament already holds all the cards

There is a paradox at the centre of the great Brexit High Court case. The applicants demanding a parliamentary vote on leaving the EU assert the doctrine of parliamentary sovereignty – yet to gain their point they have to prove a piece of parliamentary legislation can be overthrown at the whim and say-so of the Prime Minister – by issuing her EU exit notification under Article 50 of the Lisbon Treaty.

But Brexit cannot occur in any effective form without Parliament’s clear and overt agreement – enshrined in legislation. A pro-EU Parliament is in a powerful position, but Theresa May and her Three Brexiteers are not rushing to inform MPs and Peers of the strength of their hand.

The point is that the European Communities Act 1972 is a piece of sovereign legislation – and it will remain intact after the Article 50 notification goes out – and even after Britain leaves the EU if Parliament decides to leave it there. If Parliament says so, it will remain good law, actionable in the British courts and indeed in the Court of Justice of the European Union.

Mrs May can issue her Article 50 notice under Royal prerogative, break with the EU if she wants, but the legislation stays in place – forever, if that is what Parliament wants. Furthermore it can continue to be effective law for as long as the EU continues to exist if that is the will of Parliament. Britain could be outside the EU – yet governed by its treaties, laws, Court of Justice decisions. It could all continue to apply and the UK courts will (or should) apply it insofar as it is practical to do so.

That is because, to hammer home the point, Parliament is sovereign – and the meaning of parliamentary sovereignty is that British courts will recognise the legislation that passes through Parliament and is signed into law by the Monarch (see Edinburgh and Dalkeith Railway Company v John Wauchope).

Now, Mrs May has offered a Great Repeal Bill so Parliament can sweep aside the ECA – but she hasn’t pointed out that Parliament need not sweep it aside at all if it doesn’t want to (otherwise why have a “repeal” Act?). If Parliament wants Britain to be governed by EU law it can be. Which puts Parliament in a powerful position to amend the ECA (via the Great “Repeal” Bill) to dictate the nature of Britain’s continuing relationship with the EU – soft Brexit, hard Brexit, European Economic Area membership or some other system. Or it can leave Britain in the, admittedly anomalous position, of being a sovereign nation governed in part by foreign law.