The Grenfell disaster was, among many other things, a failure of building regulations to protect residents. It’s clear to me that the Hackitt Review had to re-learn the lessons of work health and safety, and with Dame Judith a previous head of the HSE, I awaited her review with some optimism. Here’s why I believe she has grasped the opportunity.

The background to the review

In August 2017, still digesting the horrendous failure of building regulation in the aftermath of the Grenfell Tower fire, I wrote about what we might learn from the way that the Aberfan disaster in 1966 had helped shape a much more powerful and effective health and safety at work legislation and management approach – replacing the fatally flawed regulations that had preceded it.

I was reassured when Dame Judith Hackitt was appointed to oversee the review of building regulations that had clearly failed catastrophically to protect the lives of the people living in Grenfell Tower. As a former Chair of the Health and Safety Executive (HSE), she was perhaps uniquely placed to apply the same principles that Lord Robens applied in the early seventies when he reviewed the then outdated H&S laws. Robens created the inspired Health and Safety at Work Act (HASAWA): what would come from Dame Judith’s work?

A quick recap on the revolution in safety at work

In 1974, the year that the Health and Safety at Work Act (HASAWA) became law, the number of fatal injuries in British industry was 651. That’s six times higher than today. Pre-1974, the H&S framework had not been slack – in fact it had been highly proscriptive, setting a list of targets that industry would strive to achieve. And yet accidents and fatalities were still commonplace.

As I pointed out in my previous article, the 1966 Aberfan disaster was a clear and horrific example of this. The Coal Board had complied with regulations, but because there had been no mention of what was required if underground springs appeared under your workplace, they hadn’t reacted to or anticipated the danger this presented.

There’s a clear parallel here with today’s building regulations. They have the same complex proscriptive nature as pre-74 H&S law. But being regulation-compliant doesn’t always mean that safety is being prioritised.

How can regulation keep pace with change?

When regulation is not drafted perfectly, or technology outstrips the regulator’s knowledge, compliance to the letter of the law falls well short of what is needed. Problems that the regulator did not foresee will be missing from the guidance, and therefore never complied with.

Currently there are a bewildering array of regulators, duty holders and overlapping sets of legislation:

Excerpt from Building a Safer Future – Independent Review of Building Regulations and Fire Safety: Final Report

 

You can see the relevance of this if we look at some of the building regs themselves:

External walls are elements of structure and the relevant period of fire resistance (specified in Appendix A) depends on the use, height and size of the building concerned. If the wall is 1000mm or more from the relevant boundary, a reduced standard of fire resistance is accepted in most cases and the wall only needs fire resistance from the inside.

and

… it is possible for some or all of the walls to have no fire resistance, except for any parts which are load bearing.

The Building Regulations 2010

It may be the case that the infamous tower block cladding was not approved as a fireproof panel. But it seems that the regulations are drafted in such a way as to suggest it doesn’t need to be. I am sure that it is more complicated than that – the height of the tower has a big influence and the leaked BRE Global report pointed to a litany of incompetent practice during the refurbishment. But the fact that cladding on dozens of tower blocks has failed fire safety tests suggests that the regulations are at the very least easy to misinterpret or ignore. The regulatory framework certainly does not make it easy for anyone.

From regulatory compliance to a duty of responsibility

As with Lord Robens, the much-criticised chairman of the Coal Board who went on to revolutionise how we think about H&S, Dame Judith’s radical rethink of building regulation has not made her popular. The review has attracted comments such as:

“It beggars belief that the Government’s building safety review gives the green light to combustible materials on high-rise blocks” – Labour Shadow Housing Secretary John Healey

and

“…betrayal and a whitewash…” – Labour MP David Lammy.

I believe the criticism is in part because of a lack of understanding of just how revolutionary she is being. It may seem counterintuitive that she hasn’t banned flammable cladding materials, but this is a classic example of how regulation would fail to keep pace with change. Managing and maintaining a banned list of products so that it remains relevant would be a Herculean task, doomed to inevitable failure.

Dame Judith has identified the highest risk buildings as 10+ storey blocks and is recommending that the new regulations start there. The regs will create a series of duty holders (designers, architects, contractors, owners etc.) that pass responsibility to each other during the lifespan of the building. The central underlying goal for the duty holder is to ensure ‘building safety’ rather than merely ticking off prescriptive tasks. From initial designs to demolition – there will always be someone legally duty bound to ensure the building is safe. It will no longer be the job of the regulator to think of all the things that can go wrong and prohibit them.

In Dame Judith’s words:

The next problem may not be cladding. I have tried to fix the system regardless of what that problem might be, rather than just the cladding.

Quite right.

This would all be overseen by a new single regulator who would set gateways where failure to comply with this duty would be tested – failure would stop construction, giving teeth to the new ‘police force’.

Doing whatever it takes to ensure safety

The new regulations will put the onus on those responsible for building safety to do everything ‘so far as reasonably practical’ to ensure they’ve discharged that responsibility effectively. They will be written specifically to get the extra mile, because ‘not far enough’ is just that. The ambition is that the next ‘problem’ – whether it’s cladding or something different – will never be specified because the duty holders would have spotted the issue in advance.

I’ve made the point before: the term ‘so far as reasonably practicable’ is inspired. This clever phrase completes the circle:
1. Create a safe building
2. Do all you can to achieve this – and critically…
3. We will check that you do.

This harnesses the duty holders’ imagination, and – in this age of private litigation – their fear, too: “Is this far enough? Let’s just do that bit more…”.

But will it work?

The impact of the remarkable HASAWA legislation can be seen. Since it became law, fatal injuries in British industry have dropped by 85%, and reported non-fatal injuries are down by 77%.

When the Grenfell disaster was still very raw in our minds – and for many it still is – it seemed clear to me that the lessons that Lord Robens learned at Aberfan needed to be re-learned. When Dame Judith Hackitt was appointed I thought we had a good chance to grasp the opportunity. I was not disappointed.

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