The Oxford Conference: Holding the Government to Account
This post digests the fifth and final Panel at the Oxford Conference, which considered how central government can be held to account by those who have been affected by the Grenfell Tower tragedy and the subsequent discovery that so many homes and other buildings have been built with combustible cladding. More details can be found in the linked slide presentation. In addition, Susan Bright and Douglas Maxwell also considered human rights and state accountability for fire safety here.
This post also précises Katherine Holland QC’s closing address, which pulled together the different strands that ran throughout the day.
Time to read
Deregulation, Privatisation, and Human Rights. (Dr Brenna Bhandar, SOAS, University of London)
Brenna Bhandar’s talk highlighted aspects of neoliberalism and its relationship to law. One of the key modalities of neoliberalism is financialisation, which is now embedded in the architecture of the housing market. When considering human rights and private law remedies to protect tenants from harm, we must consider the political culture. There has been a shift from late-eighteenth century sovereign power to classical liberal modes of government. This moment ushers in something else: a mode of governmentality relying on disciplinary techniques. We have also seen the normalisation of competition and enterprise.
Kenneth Veitch argues that this does not require a shrinking or withdrawal of the state; in fact, it should be the opposite. Even those perceived as proponents of classical liberalism, such as Hayek, accepted that the state had a role in shaping social relations to construct a specific world view.
Neoliberalism is a conscious choice. The state must take positive action to ensure maximum freedom in a market society in a conception that is wholly different to a socially oriented concept of law. The subject becomes an entrepreneurial subject, and not an individual property holder.
The privatisation of state services is a key aspect of neoliberal doctrine. Their legal form has been changed by decades of neoliberal government, with the Thatcher and then Blair years, followed now by a push to complete Thatcher’s agenda. Their legal form has changed, reflecting a neoliberal mode of governing. Brenna contended that in the rush to deregulate for fire safety, state services became poorly defined. Instead, the drive to deregulate produced a morass of regulations that are not fit for purpose. (For more on the changes to the Building Regulations, see Jonathan Carrington’s contribution to the second Panel.)
Further, the legal form reflected neoliberal modes of governance. Financialisation is now playing a huge role in residential housing markets. It creates a form of profit unrelated to the creation of surplus value. Financialisation has seen the adoption of real estate investment trusts. These combine various operations, such as portfolio management. In practice, the strategies adopted mean that capital can come and go without selling entire properties. We now have forms of ownership and profit without responsibility. It is not so much that finance capital imposes itself on the real estate sector, but that the sector represents a market in property in a neoliberal system.
Some key traits of financialisation include:
- The transformation of the conduct of non-financial enterprises, such as banks and households.
- The emergence of different kinds of bordering and territorialisation.
- Participation in financialisation so as to generate profit. It saturates everyday life through indebtedness.
One question, therefore, is whether we have two entirely different ideologies, so that we now find neoliberalism in a legal infrastructure where accountability does not find a place. If there was a time to use human rights or private law remedies to challenge neoliberalism, Brenna argued, this would seem to be the right moment to do so.
Article 2: The Right to Life. (Remy Mohamed, INQUEST)
INQUEST is an independent charity formed in 1981 providing expertise in state-related deaths. Its method is to use the direct evidence from its casework to drive systemic change. Remy explained that its focus is to ensure that the voices of bereaved family members are heard.
Since it was founded, families have told the charity they want to get to the truth. They want justice, and for those responsible to be held to account. They also want to ensure it does not happen again.
The incorporation of Article 2 of the European Convention on Human Rights into UK domestic law through the Human Rights Act 1998 led to a real change to getting at the truth. Article 2 establishes the right to life, which places on the state both a negative obligation not to take life and also positive obligations to protect life. In addition, Article 2 imposes post-death investigative obligations on the state. A post-death inquiry must be launched on the initiative of the state. It must be independent, prompt, open to public scrutiny, and involve effective participation of bereaved families. Article 2 has transformed the inquest system and is a driving force behind changing inquest law.
When they function at their best, both inquests and inquiries can hold parties to account. There are differences between an inquest and an inquiry. Article 2 inquests are held before a jury, and families have a right to ask questions. They have, however, a narrow remit, and the coroner is interested in a narrow set of questions, particularly the issue of how the deceased came by their death. By contrast, the scope of public inquiries can be broad. There is a chair and often a panel. All those directly affected are core participants. In both, families have the right to effective participation.
The Grenfell Tower Inquiry was announced the day after the fire. Its terms of reference are narrower than many people had hoped for. We are therefore faced with a state-led public inquiry into state failings. In Remy’s view, the chair was appointed without transparency. Whereas previous inquiries had a diverse panel, the Inquiry will only begin sitting with a panel in Phase 2.
The venue for the Inquiry is set in central London, in Holborn Bars. This a triggering venue, as this is the location where people were told whether their relatives had lived or died immediately after the fire. It is also hard to reach for family members from west London. Further, lawyers are not allowed to directly question witnesses, raising barriers to effective participation.
INQUEST held a Family Consultation Day. Following this, the charity wrote an anonymised, evidence-based report, which can be found here. The charity asked families how to improve the inquiry process. It was told that they would have been far more trusting if the panel had been there from the beginning of Phase 1. The families also wanted a consultation on location.
The report proposes the adoption of duty of candour by public authorities. This could be implemented by a Public Authority Accountability Bill, providing an enforceable legal duty of candour, as well as equality of arms.
Remy concluded by reminding the conference that 72 lives were lost at Grenfell. This was a wholly preventable disaster.
Closing Address. (Katherine Holland QC, Landmark Chambers)
Cladding, Katharine Holland stated, is a multi-faceted topic. The basic problem had been succinctly summarised by Ritu Saha at the outset: why is it the leaseholder, who, of all the people in the chain of responsibility had had the least role in installing that cladding, is the one left with the ultimate responsibility for its removal?
Various areas of law had been the subject of consideration during the day. In relation to property law, it had been explained that the focus had never really been on safety and that much depended on the individual drafting of lease terms. Contract law is limited by the scope of the potential pool of defendants and limitation period issues, while tort law is limited by the scope of the common law. Insurance law is tied by wording used in the policies to excuse payments. A construction law approach shows that the Building Regulations have not proven to be either clear or accessible.
One of the emerging themes from the conference had been that, in relation to the past, perhaps the only solution is government funding to remove this cladding. As for the future, the solutions canvassed had been clearer regulation, a change of culture, and a hope that the common law will be developed to increase the scope of the duty of care.
One of the problems that the legal industry faces is its increasing compartmentalisation and specialisation. It seemed that only by breaking down practice boundaries could momentum be developed for a solution to the problems brought into focus by the conference.
How to cite this blog post (Harvard style)
Bright, S. and Sawtell, D. (2019). The Oxford Conference: Holding the Government to Account. Available at: https://www.law.ox.ac.uk/housing-after-grenfell/blog/2019/10/oxford-conference-holding-government-account (Accessed [date])
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