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School of Law

Regulating the regulations

Gary Lynch-Wood asks whether we can ensure the integrity of a regulatory framework is maintained so that we do not sleepwalk into tragedies such as Grenfell.

When, having seen smoke in the area of his fridge-freezer, Behailu Kebede called the fire-brigade at approximately 00.54am on the 14th June 2017, few could have imagined the scale of the tragedy that was to follow.  In just a few minutes the fire had climbed the exterior of the 24 storey building, and by 3am had engulfed most of the upper floors of the London tower. Notwithstanding huge efforts from the emergency services, with more than 200 firefighters and 40 fire engines attending the scene, 72 people died as a result of the fire. This, of course, was the Grenfell Tower disaster.

A lot has been said about Grenfell. There has been a considerable amount of finger-pointing, while quite understandably there have been calls for someone to be held to account. Amongst those in the frame include: Kensington and Chelsea Tenant Management Organisation which managed the tower on behalf of the council; the organisations responsible for the 2016 refurbishment of the tower; Kensington and Chelsea Borough Council; and even the emergency services.  The ongoing Grenfell Tower inquiry, chaired by Sir Martin Moore-Bick, will hopefully get to the bottom of many important issues, and will make recommendations about what is required to prevent a repeat of the tragedy. We will learn more as the inquiry unfolds.

Regulation

The regulatory landscape that surrounds large developments and projects like Grenfell Tower has been brought into sharp focus by the tragedy. Based on my observations in other fields, particularly environmental protection, I want to consider the nature of the problem when we have layers of regulation and multiple regulatory actors.

The reason I ask these questions is because I have come to realise, through my work on organisational behaviour and regulation, that organisations differ in their rule following practices and these differences can cause regulation deficits that might be difficult (if not impossible) to regulate out.

Rules of the game

Why is this an issue? Well, the core regulatory framework - the ‘rules of the game’ - around developments such as Grenfell Tower is both extensive and complex, spanning rules governing the whole lifecycle of buildings from their planning and construction through to their use, occupation and refurbishment.

The fire safety features of the framework are set out in several pieces of primary and secondary legislation such as the 2010 Building Regulations, the 2004 Housing Act, the 2005 Housing Health and Safety Rating System Regulations, the Fire Precautions Act of 1971, and the Carbon Monoxide Alarm (England) Regulations of 2015.

So, in an intricate and constantly changing framework there are countless rules designed to keep residents safe. Yet when we consider a regulatory framework, it is naive to simply think of the rules themselves. After all, regulation does not implement itself. We must add to this complex picture the many actors that are likely to be involved in the process.

Potential for problems

The regulatory environment is a dynamic environment, and with this dynamism comes the potential for regulatory malfunctions and deficits. Thus, there are numerous ways in which organisations merge to work on the construction and refurbishment of buildings. There are many bodies involved, and I suspect each will have their own regulatory and rule-following cultures and practices. Some will be better than others.

To give some idea of the scale of this issue in relation to Grenfell, figures suggest 383 firms are part of the police investigation and this is just for one residential tower block.

In a regulatory environment such as this, where we have multiple rules, agencies and bodies interpreting them, it is hardly surprisingly that there will be damage to the integrity of the regulatory system, and particularly in an environment where it has been suggested that cost issues have been prioritised.

Grenfell tower after the fire

Police have identified that 383 firms are part of the police investigation. They have obtained over 31 million documents in relation to the tragic fire.

Hackitt Review

The recent report by Dame Judith Hackitt into building regulations and fire safety highlighted the need to ensure that regulations are fit for purpose and that the regulator operates effectively to ensure buildings are safe.

“The regulatory framework also needs to be capable of overseeing as many activities as possible and on an ongoing basis.”

From my own research it was no surprise to me that in her review she identified several weaknesses in the current framework. These included ignorance (e.g. regulations and guidance not always read or misunderstood or misinterpreted), and indifference (e.g. the motivation often being to do things quickly and cheaply, with a failure to prioritise safety).

Developing a robust regulatory framework will not be an easy or cheap undertaking. Safety certainly needs to be prioritised, and this is likely to come at a cost, but it is a justifiable one.

The regulatory framework also needs to be capable of overseeing as many activities as possible and on an ongoing basis. It will need proper monitoring and accountability measures in place for any organisation involved with critical safety work.

The larger question remains. Is any regulatory framework capable of dealing with a dynamic environment that promotes organisational difference? I’m yet to see one, but we can and must do better.