Grenfell Tower Inquiry: Phase 2 Report · 2024
Chapter 99: The legislative framework
Chapter 99: The legislative framework
¶99.1 The framework for emergency planning and response arrangements in the United Kingdom is governed by the Civil Contingencies Act 2004 ("the Act")2 Civil Contingencies Act 2004 {CAB00004616}. and the Civil Contingencies Act 2004 (Contingency Planning) Regulations 2005 ("the Regulations").3 Civil Contingencies Act 2004 (Contingency Planning) Regulations 2005 {CAB00007003}.
¶99.2 Part I of the Act4 Civil Contingencies Act 2004, Sections 1-18 {CAB00004616/1}. deals with local arrangements for civil protection, defining an "emergency" and establishing a statutory framework of roles and responsibilities for responders. The Grenfell Tower fire was an emergency within the meaning of the Act.5 Civil Contingencies Act 2004, Sections 1(1)(a) and 1(2) {CAB00004616/1}.
¶99.3 The Act divides responders into Category 1 responders (which include the fire and rescue, police, and ambulance services and local authorities)6 Civil Contingencies Act 2004, Schedule 1, Part 1, paragraph 1(c) and paragraph 1A {CAB00004616/31}. and Category 2 responders (which include utility companies and transport providers).7 Civil Contingencies Act 2004, Schedule 1, Part 3{CAB00004616/34}. Category 1 responders are subject to legal duties relating to civil protection, which include assessing the risk of emergencies occurring, putting in place emergency plans, making arrangements to provide information to the public about civil protection matters, maintaining arrangements to warn, inform, and advise the public in the event of an emergency, sharing information with other local responders to enhance co-ordination, and co-operating with other local responders to enhance co-ordination and efficiency.8 Civil Contingencies Act 2004, Section 2{CAB00004616/2}; Explanatory Memorandum to Civil Contingencies Act 2004 (Contingency Planning) Regulations 2005, paragraph 7.2 {HOM00000492/4}. Category 2 responders are required to co-operate with Category 1 responders in connection with the performance of their duties.9 Civil Contingencies Act 2004, Section 2(1) {CAB00004616/2}; Civil Contingencies Act 2004 (Contingency Planning) Regulations, Regulation 4(5) {CAB00007003/5}.
¶99.4 Government departments are not responders for the purposes of the Act. Bodies such as the TMO are also not subject to duties under the Act.
¶99.5 In London, Category 1 responders discharge their statutory obligations collectively through the London Resilience Forum ("the Forum") and work together within the Forum to assess the risk of an emergency of any particular kind occurring in London.10 Civil Contingencies Act 2004, Section 2(1)(a) and (b) {CAB00004616/2}. They are required to maintain plans for emergencies collectively within the Forum11 Civil Contingencies Act 2004, Section 2(1)(d) {CAB00004616/3}. and to maintain arrangements to warn the public and provide it with information and advice if an emergency is likely to, or has, occurred.12 Civil Contingencies Act 2004, Section 2(1)(g) {CAB00004616/3}.
10Ministerial intervention and emergency powers
¶99.6 Under Part 1 of the Act ministers have the power to make legally enforceable orders to reduce, control, or mitigate the effects of a local emergency, or take other action in connection with it, subject to an affirmative resolution of both houses of Parliament.13 Civil Contingencies Act 2004, Section 5(1) and 5(3); Civil Contingencies Act 2004, Section 17(2) {CAB00004616/7} and {CAB00004616/18}. Orders can require collaboration with a specified person or body or confer a power on a minister or some third party that would normally be exercised by a responder (Civil Contingencies Act 2004, Section 5(4) {CAB00004616/7}). They can also require or permit the disclosure of information, which would otherwise not be available (Civil Contingencies Act 2004, Section 6 {CAB00004616/8}). In cases of urgency, ministers can issue temporary written directions to responders, without any further formality, that remain binding for 21 days.14 Civil Contingencies Act 2004, Section 7 {CAB00004616/9}. Neither of those powers was used in connection with the Grenfell Tower fire. The Act also contains provision for making emergency regulations,15 Civil Contingencies Act 2004, Sections 19-31 {CAB00004616/20-28}. See also Responding to Emergencies: The UK Central Government Concept of Operations ("ConOps") {CAB00000026/66-67}. but those powers were not used either.
Subsidiarity
¶99.7 Part I of the Act and the Regulations are supplemented by statutory guidance entitled Emergency Preparedness, revised by the Cabinet Office in 2011. It deals with matters that must be considered before an emergency occurs (the so-called "pre-emergency phase") and describes the requirements of the Act and the Regulations.16 Emergency Preparedness: Chapter 1 {CAB00000079}; Chapter 2{CAB00007027}; Chapter 3 {CAB00004536}; Chapter 4 {CAB00004537}; Chapter 5 {CAB00004623}; Chapter 6 {CAB00007026}; Chapter 7 {CAB00004543}; Chapter 8 {CAB00004544}; Chapter 9 {CAB00004545}; Chapter 10 {CAB00004531}; Chapter 11 {CAB00004594}; Chapter 12 {CAB00004595}; Chapter 13 {CAB00004596}; Chapter 14 {CAB00004597}; Chapter 15 {CAB00004598}; Chapter 16 {CAB00004599}; Chapter 19 {CAB00004622}. The Act is further supplemented by non-statutory guidance entitled Emergency Response and Recovery, which gives guidance on how to respond to emergencies and what the recovery phase should entail.17 Emergency Response and Recovery {CAB00004519}.
¶99.8 The UK's approach to civil contingencies is based on the principle that decisions should be taken at the lowest appropriate level with co-ordination at the highest necessary level.18 Emergency Preparedness, Chapter 16 {CAB00004599/3} paragraph 16.1. In all cases, local agencies are considered to be the building blocks of response and recovery operations.19 Emergency Response and Recovery {CAB00004519/18} paragraph 2.4.1. The role of the government is to support and supplement the efforts of local responders through the provision of resources and co-ordination. The central and sub-national tiers of government only become involved in emergency response and recovery efforts where it is necessary or helpful to do so.20 Emergency Response and Recovery {CAB00004519/18} paragraph 2.4.2.
¶99.9 Emergency Response and Recovery states that humanitarian assistance is about ensuring that those involved in and affected by a major incident are properly cared for.21 Emergency Response and Recovery {CAB00004519/116} paragraph 7.1.1. That is likely to include the provision of basic shelter, information about what has happened, medical assistance and treatment, financial and legal support, psychosocial support, advice and direction on how to get further help and assistance, communication facilities to enable people to contact and meet each other, providing a link to a police investigation, where relevant, and providing a point of contact for longer-term support and advice.
11¶99.10 Emergency Response and Recovery also indicated that in this case RBKC (as the relevant local authority) should work with partners to provide immediate shelter and welfare for survivors who did not require medical support, their families and friends, through rest centres, humanitarian and other centres, in order to meet their immediate or short-term needs), to provide for the medium- to longer-term welfare of survivors (for example, by means of support from social services and financial assistance and also by providing helplines to answer questions from the public in one place), to facilitate the remediation and re-occupation of sites or areas affected by the emergency, to co-ordinate the activities of any voluntary sector agencies and spontaneous volunteers and to lead the recovery effort.22 Emergency Response and Recovery {CAB00004519/33-34} paragraph 3.2.34.
Guidance supporting the Act
¶99.11 In addition to the two core guidance documents, Emergency Preparedness and Emergency Response and Recovery, there are a large number of further guidance and policy documents which deal with various aspects of the civil protection regime and emergency response arrangements.23 {CAB00000010} sets out policies, procedures, plans and strategy documents of which the Civil Contingencies Secretariat considered as of potential relevance to the Grenfell Tower fire response. Hammond {CAB00014764/2} page 2, paragraph 8. They include Evacuation and shelter guidance,24 {CAB00004627}. Human Aspects in Emergency Management25 {CAB00000036}. and National Recovery Guidance.26 {INQ00015207}.
¶99.12 Katharine Hammond, then Director of the Civil Contingencies Secretariat (part of the Cabinet Office), told us that guidance and policy documents were made available to local responders through an online platform,27 Resilience Direct is the private web-based platform used by responders both in planning and in response and recovery. Hammond {CAB00014764/10} page 10, paragraph 33. but that many local responders also had hard copies.28 Hammond {Day280/139:18}-{Day280/140:4}. Although Ms Hammond could not recall any concern or complaint being raised about the complexity or quantity of guidance and policy documents or the general complexity of the civil contingencies framework,29 Hammond {Day280/140:11-25}. the guidance and policy documents are lengthy, numerous, and do not always define important concepts in the same way.
¶99.13 Emergency Preparedness states that emergency plans should have particular regard to the vulnerable (those with mobility difficulties, those with mental health difficulties or who are dependent on others, such as children) and to survivors and others affected (those directly affected by the emergency or the anxiety of not knowing what has happened).30 Emergency Preparedness, Chapter 5 {CAB00004623/39-40} paragraphs 5.97-5.103. Emergency Response and Recovery recognises that special consideration must be given to the needs of various of groups for care and support, with particular reference to four groups which can make challenging demands on responding agencies, namely, (i) children and young people, (ii) faith, religious, cultural and minority ethnic communities, (iii) elderly people and (iv) people with disabilities.31 Emergency Response and Recovery {CAB00004519/129-131} section 7.7.
12¶99.14 In addition, the Home Office issued guidance entitled The Needs of Faith Communities in Major Emergencies: Some Guidelines32 "Needs of Faith Communities in Major Emergencies" guidance {CAB00014865}. and the Cabinet Office issued guidance documents which specifically addressed the needs of vulnerable people,33 MacFarlane {CAB00014862/3-4} pages 3-4, paragraph 11; Emergency Preparedness, Chapter 5 {CAB00004623/39} paragraphs 5.98. including Identifying people who are vulnerable in a crisis,34 "Identifying People Who Are Vulnerable in a Crisis: Guidance for Emergency Planners and Responders", guidance, published in 2008, specifically refers to minority language speakers {CAB00014864/14} and the Disability Discrimination Act as "other legislation may interact with responsibilities under the Civil Contingencies Act" {CAB00014864/7} paragraph 11. Expectations and Indicators of Good Practice Set for Category 1 and 2 Responders35 "Expectations and Indicators of Good Practice Set for Category 1 and 2 Responders" guidance, revised in October 2013, lists giving special consideration to vulnerable people when producing plans as a "mandatory requirement" {CAB00004629/26} and reminds responders of the need to consider vulnerable groups when communicating with the public {CAB00004629/28}. and Preparation and planning for emergencies: responsibilities of responder agencies and others.36 "Preparation and planning for emergencies: responsibilities of responder agencies and others" guidance, published in February 2013 {CAB00014785}. We have not found it necessary to examine that further guidance in detail.
¶99.15 At the time of the Grenfell Tower fire, most of the Cabinet Office guidance did not refer to the Equality Act 2010 or to how responders should discharge their duties under it, including the public sector equality duty, when planning for emergencies.37 The Equality Act 2010 was identified in Annex C of Human Aspects in Emergency Management as a key piece of legislation that should be considered when planning for Humanitarian Assistance {CAB00000036/56}. In contrast and by way of example, at the London level the Act was referred to directly in the London Resilience Partnership's 2015 document "Identification of the Vulnerable: A Guidance Note for Local Implementation" {LFB00061174/6} paragraph 1.6 and the Humanitarian Assistance Framework, v.5 dated April 2017 {LFB00061172}. We observe that although the National Resilience Standards introduced in July 2018 now include one discrete reference to the Equality Act 2010,38 MacFarlane {CAB00014862/5} page 5, paragraph 14. the Act is not mentioned in either Emergency Preparedness or Emergency Response and Recovery. Nor is it listed in Chapter 19 of Emergency Preparedness, which addresses what is called "the fit with other legislation" but has not been revised since its publication in February 2011.39 Emergency Preparedness, Chapter 19 {CAB00004622}.
Risk assessment at national level
¶99.16 Since 2005 the Civil Contingencies Secretariat has produced a National Risk Assessment. Originally it was produced annually but since 2014 it has been produced biennially.40 McCloghrie {CAB00014798/2} page 2, paragraph 6. The assessment, which since 2019 has been incorporated into the National Security Risk Assessment, is a classified document which identifies what the government considers to be the most serious types of risks facing the United Kingdom over the coming five years. In order for a risk to be included, it must constitute a civil emergency within the meaning of the Civil Contingencies Act, be an event that could plausibly occur within the next five years and have an effect which exceeds a certain minimum level. There are usually between 70 and 100 risks identified in the NRA.41 McCloghrie {CAB00014798/3} page 3, paragraph 11.
¶99.17 The designated "owner" of each risk, normally a government department, is responsible for collecting evidence to inform the assessment and is required to work with experts from within and outside the organisation to gain a clear understanding of the risk and its consequences. The owner of the risk is required to use the information obtained in that way to identify a serious but plausible manifestation of the risk (known as "a reasonable worst-case scenario"),42 A reasonable worst case scenario (RWCS) is defined as a challenging yet plausible manifestation of the risk. Hammond {CAB00014799/5-6} pages 5-6, paragraph 17. the likelihood of its occurring and the potential effect if it were to do so.43 McCloghrie {CAB00014798/4} page 4, paragraph 13. The most recent edition of the National Risk Assessment before the Grenfell Tower fire had been completed in 2016 and released in February 2017.44 Hammond {CAB00014799/3} page 3, paragraph 8. At that time, the Home Office was the owner of the risk in relation to fire.45 Hammond {Day280/103ː1-17}; Hammond {CAB00014799/4} page 4, paragraph 10.
13¶99.18 The National Risk Assessment released in 2017 included in its risks a significant wildfire.46 McCloghrie {CAB00014798/10-11} pages 10-11, paragraph 36. It did not envisage a major fire in a high-rise building47 Edwards {HOM00050071/7-8} pages 7-8, paragraph 28. and no consideration appears to have been given to an event of that kind.48 Hammond {CAB00014868/2} page 2, paragraphs 7-8; Edwards {HOM00050071/8} page 8, paragraph 30. Luke Edwards, director of fire and resilience within the Crime, Policing and Fire Group at the Home Office,49 Edwards {HOM00050071/1} page 1, paragraph 3. was not aware that it had been considered50 Edwards {HOM00050071/8} page 8, paragraph 30. and Ms Hammond was unable to say whether a tower block fire had been considered and discounted or had not been considered at all.51 Hammond {Day280/107ː4-8}.
¶99.19 The National Risk Assessment was based in part on certain assumptions (the National Resilience Planning Assumptions), which establish the maximum expected scale, duration, and severity of the common consequences of the reasonable worst-case scenario described in the risk summaries.52 Hammond {CAB00014799/2} page 2, paragraph 4.3; Hammond {CAB00014799/10} page 10, paragraph 33. Examples include the number of casualties and the extent of disruption to certain essential services.53 Hammond {CAB00014799/16-17} pages 16-17, paragraph 55.
¶99.20 The National Risk Assessment and the National Resilience Planning Assumptions together form the basis of the National Risk Register, which is a public document54 Hammond {CAB00014764/6} page 6, paragraph 22. used by local responders and local resilience forums to inform their own risk assessments and planning assumptions. The National Risk Register current at the time of the Grenfell Tower fire, published in March 2015,55 National Risk Register 2015 {CAB00007009}. identified the risk of severe wildfires but did not identify the risk of a major fire in a high-rise building.56 National Risk Register 2015 {CAB00007009/27-28}.
¶99.21 Ms Hammond said that although the National Risk Assessment issued in 2016 did not identify a significant urban fire (including a fire in a tower block), a number of reasonable worst-case scenarios indicated the need to plan for outcomes very similar to those seen at Grenfell Tower. That in turn should have meant that the omission of an urban fire did not prejudice the ability of Category 1 and Category 2 responders to make a fully informed local risk assessment.57 Hammond {Day280/114ː8-15}.
¶99.22 Ms Hammond accepted, however, that the inclusion of an urban or tower block fire in the 2016 version of the National Risk Assessment would have provided a focus for responders58 Hammond {Day280/133ː2-7}. and we consider that it would have significantly increased the likelihood of its inclusion in documents such as the London Risk Register, to which we come later. We note that the version of the Local Risk Management Guidance produced by the Civil Contingencies Secretariat in 2016, which was intended to help Category 1 and 2 responders fulfil their local risk assessment duties and provide advice on how best to use information from the 2016 National Risk Assessment in a local context,59 Hammond {CAB00014799/13-15} pages 13-15, paragraphs 45-49. directed responders to consider which of the risks identified in the National Risk Assessment were relevant to their own areas.60 Hammond {CAB00014799/14} page 14, paragraph 48.1.
14¶99.23 The Civil Contingencies Secretariat is also responsible for the management of the online database which acts as a single repository of information obtained from a variety of sources which is thought to provide lessons for the future.61 MacFarlane {CAB00014794/10} page 10, paragraph 35. Known as the Joint Organisational Learning system, it is specifically intended to meet the need to capture, promulgate and implement lessons learnt from major incidents.62 MacFarlane {CAB00014794/10} page 10, paragraph 35. However, at the time of the Grenfell Tower fire the database did not include any lessons learnt from earlier incidents involving fires in high-rise buildings, such as the Lakanal House fire in July 2009, the Shirley Towers fire in Southampton in 2010 or the Adair Tower fire in October 2015.63 MacFarlane {CAB00014803/3} page 3, paragraph 7. Ms Hammond, who was not in post at the time of those incidents, did not know why lessons learnt from them had not been included.64 Hammond {Day280/120ː2-14}. It is not clear whether an urban or tower block fire would have merited inclusion as a separate risk in the 2016 version of the National Risk Assessment, but we are concerned that the omission from the database of lessons gained from any urban fires may have limited the material available to inform the assessment of risks.
¶99.24 Following the Grenfell Tower fire, the National Risk Register issued in September 2017 was revised to include the risk of fire in a residential building, with specific mention of the Grenfell Tower fire.65 National Risk Register 2017, "Industrial and Urban Accidents" {CAB00000069/46-49}. See also the National Risk Register 2020 "Major Fires" {INQ00015149/83-86}. In that edition the "Major Fires" chapter is separate to the chapter on "Industrial Accidents". A Home Office witness explained that the decision to include it was made in the light of the widespread use of combustible cladding and the new understanding that other buildings might be at risk. It was thought that using the publicly available National Risk Register was a sensible way of communicating those matters more widely.66 Edwards {HOM00050071/9} page 9, paragraph 32. The National Security Risk Assessment completed in 2019, the most recent version of the National Risk Assessment, includes the example of a fire in a high-rise residential building as the reasonable worst case scenario for a fire risk, with the risk of wildfire remaining as an alternative.67 McCloghrie {CAB00014798/12} page 12, paragraph 40. The inclusion of an urban fire has also resulted in some small changes to the National Resilience Planning Assumptions, for example, a major fire is now a risk to consider in the planning assumption for rubble, debris, and trapped people.68 McCloghrie {CAB00014798/12} page 12, paragraph 40. Ms Hammond told us that the Civil Contingencies Secretariat had a better understanding of the fire risk which had been improved by revised Home Office modelling following the Grenfell Tower fire. As a result, it was now recognised that the consequences of a major tower block fire were more significant than had previously been assessed.69 Hammond {CAB00014799/20} page 20, paragraph 65.
¶99.25 Local resilience forums are responsible for risk assessments in their areas. The London Resilience Forum discharges the statutory duties in relation to Greater London to assess risks across London and maintain plans for responding to them.70 Civil Contingencies Act 2004, Section 2(1)(d) {CAB00004616/2-3}.
15The London Risk Register
¶99.26 The London Risk Register is developed in a way that is consistent with the National Risk Register71 Hetherington {LFB00119130/14} page 14, paragraph 44. and provides an overview of the principal risks which may affect London as a whole.72 Hetherington {Day277/109:11-23}. The register completed in February 2017 and therefore current at the time of the Grenfell Tower fire did not refer to the risk of a major fire in a residential tower block, although it did refer to the risk of a severe wildfire.73 London Risk Register v.5.4, 2017 {LFB00061165/13}. That was because a residential tower block fire had not been included in the register since it had not been included in the National Risk Register and had not been identified by the London Risk Assessment Group as a risk that required a London-wide approach.74 Hetherington {Day277/110:14-24}.
¶99.27 When it revised the London Risk Register in February 2017, the London Risk Assessment Group did not consider whether the fires at Lakanal House in July 2009 and Adair Tower in 2015 had altered the level of risk presented by a tower block fire in London, it seems because it had not been alerted to the fact that it might need to take account of those fires.75 Hetherington {Day277/111:1-11}. The responsibility to feed that risk into the process for compiling the London Risk Register rested with the relevant Category 1 responders, the London Borough of Southwark in the case of the Lakanal House fire and RBKC in the case of the Adair Tower fire.76 Hetherington {Day277/116:17-25}. In addition, the LFB, which had primary responsibility for identifying risks relating to fire in London, had not alerted those responsible for the London Risk Register to the risk of a major tower block fire.77 Hetherington {Day277/128:5-25}. As of May 2022, the London Resilience Group had still not given any consideration to those omissions.78 Hetherington {Day277/117:1-3}.
¶99.28 When he gave evidence, John Hetherington, then deputy head of the London Resilience Group,79 Hetherington {LFB00061158/2} page 2, paragraph 5; Hetherington {Day277/7:1-10}. accepted that the risk of a high-rise or urban tower block fire should have been included as a separate entry on the London Risk Register before June 2017 and that its absence was a serious failing.80 Hetherington {Day277/121:12-19}. We agree. The fires at Lakanal House and Adair Tower, not to mention the fires that had occurred in high-rise buildings abroad, ought to have prompted consideration of that risk which should have been taken into account by those responsible for the London Risk Register as part of their assessment and incorporated into it.
16¶99.30 The Borough Risk Register issued in December 2016 described itself as a "living document" that was to be revised and updated as and when required.84 {RBK00036688/8} section 2.3. There appears to have been little or no consideration of the inclusion of the risk of fire in a high-rise building, despite the history of fires in buildings of that kind in London, including the Adair Tower fire in October 2015 (which happened within RBKC's resilience jurisdiction) and the Lakanal House fire in 2009.85 Kerry {Day268/23:11-17}. Although the regulatory framework requires Category 1 responders to consider risks specific to their locality, it is apparent from the evidence of David Kerry86 Kerry {Day268/22:17}-{Day268/23:10}. that significant reliance was placed on the London Risk Register instead of the Borough Risk Register.87 Also referred to as the Community Risk Register {RBK00036688/8} section 2.2.
¶99.31 In our view, tower block fires should have been included in both the London and Borough risk assessments. Government tools (such as the Joint Organisational Learning online database) were defective and Ms Hammond's expectation that the planning assumptions would act as a "safety net", catching any gaps in the reasonable worst-case scenarios, did not reflect the reality of local risk assessment. If there had been a reference to a tower block fire in the National Risk Register, as there now is, it is likely that local risk assessors would have been prompted to consider the risks in detail.
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