Daniels, R (on the application of) v Prime Minister & Anor

On 14 June 2017 a fire broke out at Grenfell Tower in Kensington. 71 residents died in the fire, and hundreds more were made homeless. The fire was one of the most shocking national tragedies in living memory. The charred shell of the building is still a prominent feature of the West London landscape.

Mr Joseph Daniels, father of the claimant Mr Samuel Daniels, was among those who died in the fire. Mr Daniels senior was an elderly disabled man who lived in flat 135 on the 16^th floor of Grenfell Tower from 1983 onwards.

On 22 June 2017 the Prime Minister made a statement to the House of Commons. In it she stated:-

“… as the scale of the tragedy became clear, we quickly decided there had to be an independent public inquiry. As I said to the House yesterday it will be chaired by a judge to get to the truth and find who was responsible – and to provide justice for the victims and their families who suffered so terribly”.

Later in the statement she said:

“I am also clear that we cannot wait for ages to learn the immediate lessons – and so I expect the Chair of the Inquiry will want to produce an interim report as early as possible.”

On 28 June 2017 the Prime Minister wrote to Sir Martin Moore-Bick, the recently retired Vice-President of the Civil Division of the Court of Appeal, as follows:-

“You have agreed to be the Chairman of the Public Inquiry into the Grenfell Tower tragedy, which is being established and held under the provisions of the Inquiries Act 2005 (“the 2005 Act”).

This letter serves as the formal written instrument of your appointment as Chair to the said Inquiry for the purposes of 4(1) of the 2005 Act.

You have agreed to consult the victims, family members and other interested parties on the Terms of Reference for the Inquiry with the intention of providing me with your recommendations. I will then reflect those recommendations in the final Terms of Reference, which will be published. I will write to you again when I set out the Final Terms of Reference and confirm the Inquiry setting-up date.

It is not proposed to appoint any other members to the Inquiry Panel at this stage. As agreed, you will now discuss draft Terms of Reference with victims, family members and other interested parties. Any future decision to appoint panel members will be taken in consultation with you and with your consent.”

It is convenient at this stage to set out the relevant provisions of the Inquiries Act 2005 to which this letter referred. Section 3(1) states that “an inquiry is to be undertaken either (a) by a chairman alone or (b) by a chairman with one or more other members”. Section 3(2) states that references in the Act to an inquiry panel are to the chairman and any other member or members.

Section 7 provides:-

“Further appointments to inquiry panel

(1)The Minister may at any time (whether before the setting-up date or during the course of the inquiry) appoint a member to the inquiry panel—

(a)to fill a vacancy that has arisen in the panel (including a vacancy in the position of chairman), or

(b)to increase the number of members of the panel.

(2)The power to appoint a member under subsection (1)(b) is exercisable only—

(a)in accordance with a proposal under section 5(1)(b)(ii), or

(b)with the consent of the chairman.

(3)The power to appoint a replacement chairman may be exercised by appointing a person who is already a member of the inquiry panel.”

Section 8 provides:

“Suitability of inquiry panel

(1)In appointing a member of the inquiry panel, the Minister must have regard—

(a)to the need to ensure that the inquiry panel (considered as a whole) has the necessary expertise to undertake the inquiry;

(b)in the case of an inquiry panel consisting of a chairman and one or more other members, to the need for balance (considered against the background of the terms of reference) in the composition of the panel.

(2)For the purposes of subsection (1)(a) the Minister may have regard to the assistance that may be provided to the inquiry panel by any assessor whom the Minister proposes to appoint, or has appointed, under section 11.”

Section 9 is headed “Requirement of impartiality”. Subsection (1) provides that “the Minister must not appoint a person as a member of the inquiry panel if it appears to the Minister that the person has (a) a direct interest in the matter to which the inquiry relates, or (b) a close association with an interested party, unless, despite the person’s interest or association, his appointment could not reasonably be regarded as affecting the impartiality of the inquiry panel”.

Section 11 provides:-

“Assessors

(1)One or more persons may be appointed to act as assessors to assist the inquiry panel.

(2)The power to appoint assessors is exercisable—

(a)before the setting-up date, by the Minister;

(b)during the course of the inquiry, by the chairman (whether or not the Minister has appointed assessors).

(3)Before exercising his powers under subsection (2)(a) the Minister must consult the person he proposes to appoint, or has appointed, as chairman.

(4)A person may be appointed as an assessor only if it appears to the Minister or the chairman (as the case requires) that he has expertise that makes him a suitable person to provide assistance to the inquiry panel.

(5)The chairman may at any time terminate the appointment of an assessor, but only with the consent of the Minister in the case of an assessor appointed by the Minister.”

On 26^th July 2017 Mr Michael Mansfield QC wrote to the Prime Minister and Sir Martin expressing a number of concerns about the impending Grenfell Tower Inquiry. He urged that several matters should be taken into account “in order to restore public confidence, trust and commitment and to encourage participation, all of which are currently in jeopardy”. I will refer to his categories A and B:-

“(A)

That the terms of reference are drawn as widely as possible both geographically (this is not just about Grenfell and RBKC it is a national failure) and historically (this is not some recent aberration) and factually from general housing policy, gentrification, attitudes to safety and expenditure, fire regulations, prevention, inspection, planning, building, authorisation, certification through to contingency and aftermath planning and provision of basic requirements for food, clothing, housing, medical and mental welfare plus the dissemination of advice and information.

(B)

That the chair should be on a panel of at least three, one of whom represents the interests of the community and diversity, and another the impact of privatisation and fragmentation.”

Sir Martin replied on 8 August 2017. On the questions of the terms of reference and the constitution of the Inquiry panel, he wrote:-

“I have taken note of your suggestions. I am not able to say at this stage whether the Inquiry will have the very wide-ranging scope you suggest, but I do expect it to pay close attention to matters such as attitudes to safety and expenditure, fire regulations, fire prevention, building and fire regulations, inspection and certification, and warnings given by residents to the Council and the Tenant Management Organisation (TMO) concerning fire safety and their response.

I am already giving thought to the need to have others involved as assessors or members of the Inquiry panel. A decision on that will be taken after the Terms of Reference have been set.

I intend to make arrangements for as many people as possible to attend the Inquiry’s hearings and for the hearings to be streamed live to other locations and made available on the Inquiry’s website. I understand that steps have already been taken to preserve documents in the possession of the Council and the TMO.”

Two days later, on 10 August 2017, Sir Martin wrote to the Prime Minister:-

“Under section 5 of the Inquiries Act 2005 (the Act) you are responsible as the minister sponsoring the Grenfell Tower Inquiry for establishing its terms of reference and specifying its setting up date. You asked me to consult the victims, family members and other interested parties on the scope of the terms of reference with a view to providing you with my recommendations.

I have carried out the consultation you requested which took the form of meetings with local residents and other interested parties as well as an invitation to respond to a consultation document posted on the Inquiry 's web site. Over 550 written responses were received, all of which have been acknowledged and carefully considered. A brief summary of those responses is enclosed. In the light of them I recommend that you set Terms of Reference for the Inquiry in accordance with the enclosed draft, which cover, among other things, not only the fire itself, but matters such as the history of the building, its most recent refurbishment, the state of building and fire regulations, and aspects of the relationship between the residents of the tower and the local authority, including in the days immediately following the fire. I also recommend that a setting up date be specified as soon as possible so that the Inquiry can begin its work. If it can do so promptly, it should be possible for me to hold a preliminary hearing in mid-September. I hope to be able to provide you with an initial report dealing with the cause of the fire and the means by which it spread to the whole building by Easter next year, although the precise timing may depend on the how long it takes for the forensic fire investigation to be completed.

I have also been giving some thought to the desirability of appointing assessors under section 11 of the Act to provide me with assistance. If you accept my recommendations on the Terms of Reference, I think it likely that I shall wish to appoint a diverse group of people whose experience extends to the occupation and management of social housing and the administration of local government more generally, as well as to matters of a more technical scientific nature. At a later stage I may also wish to appoint others to assist on particular aspects of the investigation.

As a result of the consultation it has become clear that many of those who have been affected by the fire and some others feel strongly that the scope of the Inquiry should be very broad and should include an examination of social housing policy and all aspects of the relationship between the residents of the Lancaster West estate on the one hand and the local authority and the tenant management organisation on the other. Many also feel very strongly that it should examine whether the response of local and central government to the disaster was and continues to be appropriate or adequate and whether arrangements should have been in place for responding to a disaster of this magnitude.

I can well understand why local people consider that these are important questions which require urgent examination. I share their concerns, but on careful reflection I have come to the conclusion that the Inquiry you have asked me to conduct is not the best way of satisfying their wishes for two reasons:

i)

First, there is an obvious need for my Inquiry to complete its work as quickly as possible in order to identify defects in the design, construction (including refurbishment) and management of the building that may exist elsewhere and put at risk others who live and work in similar high-rise structures. To give the Inquiry Terms of Reference which would cover all the matters requested by local residents and others would inevitably add significantly to the length of time needed to complete its work.

(ii)

Secondly, the inclusion of such broad questions within the scope of the Inquiry would raise questions of a social, economic and political nature which in my view are not suitable for a judge-led inquiry. They are questions which could more appropriately be examined by a different kind of process or body, one which could include persons who have experience of the provision and management of social housing, local government finances and disaster relief planning. It could operate in parallel with the Inquiry and would be welcomed by many.

I therefore recommend that the Inquiry's Terms of Reference should not extend to the broader questions to which I have referred. Nonetheless, the responses to the consultation have persuaded me that they should include the response of local and central government in the days immediately following the fire. The purpose of paragraphs (i)(a)-(h) of the enclosed draft is to identify the main focus of the Inquiry's work without limiting its ability to pursue any avenue of investigation which it considers appropriate.”

On 15 August 2017 the Prime Minister’s office published the terms of reference of the Inquiry. These were:-

“1.

To examine the circumstances surrounding the fire at Grenfell Tower on 14 June 2017, including:

(a)

the immediate cause or causes of the fire and the means by which it spread to the whole of the building;

(b)

the design and construction of the building and the decisions relating to its modification, refurbishment and management;

(c)

the scope and adequacy of building regulations, fire regulations and other legislation, guidance and industry practice relating to the design, construction, equipping and management of high-rise residential buildings;

(d)

whether such regulations, legislation, guidance and industry practice were complied with in the case of Grenfell Tower and the fire safety measures adopted in relation to it;

(e)

the arrangements made by the local authority or other responsible bodies for receiving and acting upon information either obtained from local residents or available from other sources (including information derived from fires in other buildings) relating to the risk of fire at Grenfell Tower, and the action taken in response to such information;

(f)

the fire prevention and fire safety measures in place at Grenfell Tower on 14 June 2017;

(g)

the response of the London Fire Brigade to the fire; and

(h)

the response of central and local government in the days immediately following the fire;

and

2.

To report its findings to the Prime Minister as soon as possible and to make recommendations.”

The announcement added:-

“Sir Martin has said that he is considering appointing assessors to assist him in his task. He considers it likely that he will wish to appoint a diverse group of people whose experience extends to the occupation and management of social housing and the administration of local government more generally, as well as to matters of a more technical scientific nature. He also states that at a later stage, he may also wish to appoint others to assist on particular aspects of the investigation. He will make his decisions public in due course. I have not appointed any other members to the Inquiry Panel at this stage. However, the Inquiries Act 2005 allows for appointments to be made, with the consent of Sir Martin, during the course of the Inquiry. This enables the composition of the Inquiry Panel to be kept under review.”

On 11^th September 2017 Birnberg Peirce, the present Claimant’s solicitors, raised in a letter the issue of whether additional members would be appointed to the inquiry panel. On 14^th September 2017 Sir Martin made an opening statement at the Inquiry in which he said that it was hoped that the appointment of a first group of assessors would be announced shortly.

In a letter of 15^th September 2017 Birnberg Peirce wrote to Caroline Featherstone, solicitor to the inquiry, asking:-

“Can you confirm whether a decision has been taken for the Chairman to conduct the Inquiry without a Panel? If such a decision has been taken, can you confirm when it was taken and if it is intended that an announcement will be made to that effect?”

On 21^st September 2017 Birnberg Peirce wrote to the Prime Minister urging her to exercise her powers to appoint other members to the Inquiry panel.

“We write on behalf of our clients to request that you urgently exercise your powers under s.7 of the Inquiries Act 2005 to appoint a Panel to sit alongside the chair in the Grenfell Tower Inquiry.

Sir Martin Moore-Bick in his letter to you of 10 August 2017, in which he set out his recommendations for the scope of the inquiry's terms of reference, noted that he thought it was likely that he would wish to appoint assessors to assist him. This was reiterated in his opening statement on 14 September 2017. However, while there is clearly a need for assessors to advise the Chair on particular issues in which he does not have expertise, in the absence of a panel, as Sir Martin Moore-Bick himself noted, the ultimate responsibility for the Inquiry's findings and recommendations rest solely with him.

Notwithstanding the appointment of assessors, which we welcome, and the expertise which they can provide to Sir Martin in specific technical areas which he identified in his opening statement, the appointment of a panel can add significant value to the Inquiry.

The role of assessors is quite distinct and different to that of an Inquiry Panel.

The first report of the Public Administration Select Committee, which considered the principles of good inquiry practice in matters of public concern, recommended the use of panels in politically sensitive cases. In particular, the report concluded that panels were "a non-statutory means of enhancing the perception of fairness and impartiality in the inquiry process.”

The Grenfell Tower Inquiry is precisely the type of case envisaged by the Committee when making this recommendation. In your letter to Sir Martin of 15 August, you stated, "What is clear is that there are a number of concerns, which have gone unheard for too long."

They continued:-

“Any public perception, particularly by those directly affected by the fire, that the Inquiry process fails to reflect fairness, balance, diversity and impartiality will render its effectiveness significantly compromised from the outset. There is currently a lack of trust in the Inquiry which threatens to undermine fundamentally the likelihood that its findings and recommendations will be accepted, and also to prevent it from playing a role in healing the deep trauma stemming from this event.

The Grenfell Tower fire is a disaster which has disproportionately affected working class communities; and in particular BME working class communities. We suggest that a panel consisting of a minimum of 3 additional lay members, with background, expertise and experience relevant to the Issues under consideration in the Inquiry is crucial and broaden the panel's perspective. These members would be present for the duration of the Inquiry.

The appointment of a wider panel to share decision making powers with the Chair, composed of a greater diversity of people who properly understand the issues facing those affected, could go a long way in ensuring that survivors, the bereaved and the general public have confidence in the Inquiry process.”

Further correspondence ensued. On 21^st December 2017 the Prime Minister wrote a letter to Sir Martin which contains the decision under review in the present case. She wrote:-

“As you know, I committed to consider the issue of panel members once you had appointed assessors to assist the Inquiry. Having regard to the assistance that may be provided by those assessors, and the Terms of Reference which it is the Inquiry's role to deliver, I believe that the Inquiry has the necessary expertise to undertake its work. I am also very conscious of the need for the Inquiry to complete its initial report as quickly as reasonably possible. I therefore consider that additional panel members should not be appointed at this stage. In reaching this conclusion, I have had regard to the public sector equality duty as set out in Section 149 of the Equality Act 2010.

I am pleased that you are taking care in gathering evidence from those most affected by the tragedy, so that they are given a chance to share their experience. I know that you agree with me that it is of paramount importance that the Inquiry provides an opportunity for the bereaved, survivors, and the community to be heard and for lessons to be learnt from their views and experiences. I would encourage you to continue working with the community affected by the fire and to consider a full range of options to foster closer engagement in the future.

I was particularly pleased to hear you propose at last week's hearing the establishment of an advisory panel of those affected by the fire. The Independent Inquiry into Child Sexual Abuse has established such a panel, and it is closely involved in the work of that Inquiry, providing advice and guidance to the Chair. Clearly, it is for you, as the Chair of the independent Inquiry, to decide how best to take this forward, in consultation with the Grenfell Tower community. But I believe that such a panel could play a very beneficial role in putting those most affected at the heart of the Inquiry and enabling them to ensure that their views and experiences are heard.

I know that you understand how important it is, particularly for the survivors, the families of the victims and others most affected by the tragedy, that the Inquiry completes its initial report as quickly as reasonably possible.”

A letter before claim was sent by Birnberg Peirce to the Prime Minister on 3^rd January 2018. On 5^th January the claim was issued. The grounds of claim, as amended on 23^rd January, can be summarised as follows:

“1.

a)

The Prime Minister misdirected herself by considering that the maintenance of public confidence was not a key or prime factor for promoting the statutory purpose of the 2005 Act. The claimant and significant parts of the public consider that a diverse inquiry panel is important for maintaining public confidence in order for there to be a full and balanced inquiry.

b)

The Prime Minister misdirected herself by considering that the procedural duty under Article 2 of the ECHR was irrelevant to her decision as to whether she should appoint panel members. It is obvious that the appointment of panel members at the inquiry is critical for ensuring public confidence in the process. In these circumstances the appointment of panel members is necessary for the discharge of the procedural duty under Article 2 ECHR.

c)

The appointment of assessors does not address the need to ensure public confidence in the conclusions of the inquiry.

2.

The Prime Minister had a duty to provide reasons for her refusal to appoint panel members in the inquiry. She failed adequately to address the central issue of having a diverse inquiry panel in the circumstances of this Inquiry and failed to engage with the representations and evidence filed by the claimant regarding public confidence.

3.

The Prime Minister failed to comply with the public sector equality duty under Section 149 of the Equality Act 2010. The Grenfell Tower fire adversely affected very large numbers of people who fall within the protected categories of the Equality Act 2010. The notion of “due regard” envisages more than a glancing reference to the legal acumen of the Inquiry team in equality matters.”

Robert Norgrove of the Government Legal Department replied on behalf of the Prime Minister on 12 January 2018. I will set out only part of his 8 page letter:-

“9.

Representatives acting on behalf of persons affected by the fire (including your firm) wrote to the Prime Minister on various dates between September and December 2017, urging her to appoint additional members to the Panel. They stated (inter alia) that such appointments were required in order to provide diversity in the Inquiry’s decision-making process, and to engender trust in the Inquiry from the local community.

10.

The Prime Minister carefully considered whether to appoint additional Panel members. On 21 December 2017, she wrote to the Chair, stating that she had determined not to appoint further Panel members to the Inquiry. She stated …

11.

The Prime Minister was well aware when taking the Decision that there was deep mistrust on the part of the community, many of whom felt that they had been let down by those in authority. She was aware that appointing a diverse panel could be one way in which to address that mistrust, and had regard to that factor. She took into account the view of many of the Grenfell residents with core participant status that a more diverse panel should be appointed.

12.

The Prime Minister also fully took into account her duty under s.149 of the Equality Act 2010 (the public sector equality duty “PSED”). She had regard to the fact that those most affected by the fire come from a diverse ethnic and religious community; and that having an Inquiry team that demonstrably understands and reflects the diversity of those most affected by the fire could help to foster good relations, and advance equality of opportunity, between persons who share a relevant protected characteristic and those who do not, by securing the confidence and engagement of those community members most directly affected.

13.

She also took into account the following matters:

(1)

The Inquiry's Chair, Sir Martin Moore-Bick, is a highly respected and experienced former Court of Appeal Judge and former Vice President of the Civil Division of the Court of Appeal. He brings very considerable breadth of experience to the Inquiry, as well as particularly extensive knowledge of relevant law. He has the technical skills, range of expertise and broad experience necessary to give rigorous consideration to all the matters set out in the terms of reference, and to satisfy the needs of the Inquiry as the sole panel member.

(2)

That position is strengthened with the appointment of assessors and expert witnesses. The assessors appointed by the Inquiry have many years of experience in their respective areas of expertise, and their appointment was made in recognition of their professional standing. Each is well-respected in their individual field, and each will be unafraid to raise concerns or draw attention to any difficult issues that may arise through the Inquiry. Whilst assessors, expert witnesses and panel members all have different roles in the Inquiry, the assessors and expert witnesses will bring their experience working with diverse communities to the Inquiry, which will no doubt be valuable to the Inquiry Chair. 

(3)

Both Joyce Redfearn and Joe Montgomery have directly relevant experience of working with and meeting the needs of diverse communities through their local authority, housing, and regeneration roles. Joe Montgomery has previously worked very closely with disadvantaged and racially and religiously diverse communities as an Executive Director for Regeneration at Lewisham LBC, as Chief Executive of the Deptford City Challenge, and while leading the Government's Neighbourhood Renewal Unit. He is extremely well placed to understand the importance of fostering good relations between those who share a protected characteristic and those who do not, by helping to secure the confidence and engagement of those community members most directly affected. He also has experience of community engagement in relation to social housing, and is well equipped to provide advice on the social context in which the disaster occurred.

(4)

Further, the Chair of the Inquiry has proposed the establishment of an advisory panel of those affected by the fire. The Independent Inquiry into Child Sexual Abuse has established such a panel, and it is closely involved in the work of that Inquiry, providing advice and guidance to the Chair. An advisory panel of a similar type would be an additional mechanism for achieving the aims of the PSED in this context. It could play a beneficial role in putting those most affected at the heart of the Inquiry, and enabling them to ensure that their views and experiences are heard. 

(5)

Having regard to all of these factors, the Prime Minister was not satisfied that it was necessary to appoint additional panel members in order to eliminate discrimination, harassment, victimisation, or any other conduct prohibited under the Equality Act 2010. 

(6)

Whether to appoint additional Inquiry panel members for the matters in s.149(1) Equality Act 2010 must also be measured against the risk of delay to the work of the Inquiry. It is vital that the Inquiry conducts as expeditious an investigation as possible, not only to provide answers for all those affected by the tragedy who wish properly to understand what went on that night, but also to identify any ongoing risks that may be pertinent to other high-rise buildings of a similar nature. The Chair of the Inquiry, the Metropolitan Police and the Crown Prosecution Service are also all concerned to ensure that the Inquiry does nothing to undermine any future prosecution. It is therefore of the first importance that the Inquiry is able to complete its work swiftly, and is able to respond in an agile way to other ongoing investigations, while ensuring effective delivery of a timely outcome.”

Following the service of Summary Grounds of Defence, the application for permission to seek judicial review was considered on the papers by Mr Justice Choudhury on 19 March 2018. He refused permission for the following reasons:-

“The Claimant’s grounds do not disclose any arguable error of law on the part of the Prime Minister.

Ground 1: It is suggested that maintaining public confidence is the “key” or “prime” factor in promoting the statutory purpose of the 2005 Act. However, the purpose of the 2005 Act, as the Claimant acknowledges at para 30 of his Grounds, is to provide for inquiries which properly address matters of public concern. There is nothing in the 2005 Act which suggests that public confidence is a matter which overrides other relevant factors in ensuring that matters of public concern are addressed. This challenge therefore boils down to the weight to be attached to public confidence by the Prime Minister, subject only to Wednesbury grounds. It is unarguable to suggest otherwise. The Art 2 point does not take the matter further. It is not alleged that the Inquiry is not independent or could give rise to a perception of bias, and the cases relied upon do not suggest that public confidence is to be treated as some sort of primary or free-standing requirement in deciding upon the constitution of the panel. The appointment of assessors is a material consideration and, once again, the weight to be attached to such appointments in her decision was a matter for the Prime Minister.

Ground 2. To the extent that it is said the reasons were inadequate because of the failure to address a “central issue”, that contention is unarguable for the reasons already set out under the first ground; no single issue had primacy over others. The reasons in the decision letter were adequate in the circumstances and were expanded upon in correspondence. In any event, the reasons challenge is unarguable because of the absence of any prejudice as result of the alleged failure to give reasons.

Ground 3: It is unclear what alleged failure is relied upon here. Paragraphs 36 and 37 of the Grounds are incorrect insofar as they suggest that in considering the PSED, the Prime Minister only had regard to the equality expertise or legal acumen of the inquiry team. A proper reading of the Prime Minister’s reasons indicates that other matters were considered including the relevant protected characteristics of those members of the community affected by the fire. It is unarguable in the circumstances that there was a failure to comply with the PSED.”

The Claimant, through his solicitors, gave notice of his wish to renew the application for permission to an oral hearing, which is what we are considering today.

On 21 March 2018 Sir Martin held a procedural hearing at which he gave directions. A list of issues for the Inquiry has now been drawn up and is appended to this judgment. The issues are grouped under 13 headings. The General Note at the start states that it is not a prescriptive list and that the Inquiry’s investigations may uncover the need to address further issues within the terms of reference but not contained in the present list. The list itself runs to almost nine pages.

Last week, on 27 April 2018, the Inquiry team published an update which states that Phase 1 of the Inquiry will begin on 21 May 2018 with commemorations of the lives of those who died in the fire at Grenfell Tower. Following the commemorations, Phase 1 hearings will continue from 4 June 2018. It states:-

“Programme for the Phase 1 hearings

Phase 1 will focus on the factual narrative of the events of the night of 14 June 2017. This will include:

•

the existing fire safety and prevention measures at Grenfell Tower;

•

where and how the fire started;

•

the development of the fire and smoke;

•

how the fire and smoke spread from its original seat to other parts of the building;

•

the chain of events before the decision was made that there was no further savable life in the building; and

•

the evacuation of residents.

Phase 2 will address the remainder of the issues identified in the List of Issues which was published on the Inquiry’s website on 14 September 2017.”

Phase 1 is expected to end, following the hearing of evidence, with closing statements in the week of 29^th October 2018. The Chairman will prepare an interim report following the end of the Phase 1 hearings. The programme for Phase 2 hearings will be issued nearer the time. The update also notes that the Inquiry currently has 547 core participants made up of 519 individuals and 28 organisations.

Mr Southey’s first and central submission is that the Prime Minister misdirected herself by failing to accept that the maintenance of public confidence is a “key or prime factor” in promoting the statutory purpose of the 2005 Act. He submitted that the principle in Padfield v Minister of Agriculture [1968] AC 997 applies, and continued in his skeleton argument:-

“8.

… As a consequence, the powers within the 2005 Act (including the power to appoint panel members) must be used to promote the policy and objects of the Act. The object of the 2005 Act is plainly to ensure that there is public confidence in the outcome of an investigation into matters of public concern. That is demonstrated by provisions of the 2005 Act requiring matters such as independence (section 9) and balance (section 8(1)(b)).

9.

The Padfield principle was violated:

(i)

First, the Defendant apparently directed herself that public confidence was merely a factor that applied in some cases.

(ii)

Secondly, the Defendant concluded that the need for public confidence was ‘outweighed’. That implies that it was accepted that public confidence would not be facilitated but that it was for good reason. That is inconsistent with Padfield.

(iii)

These matters suggest that the learned judge was wrong in his approach to public confidence.”

In Re Findlay [1985] AC 318 Lord Scarman approved and agreed with observations made in a New Zealand case in the following terms:-

“What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the court itself, would have taken into account if they had to make a decision.”

Lord Scarman also agreed with this further observation made in the New Zealand case:-

“There will be some matters so obviously material to a decision on a particular project that anything short of direct consideration of them by the ministers … would not be in accordance with the intention of the Act.”

Only two factors are expressly mandated by the 2005 Act to be taken into account in the appointment of an inquiry panel. Section 9 has a prohibition on appointing to the inquiry panel anyone with a direct interest in the subject matter or a close association with an interested party, except where the appointment could not be reasonably regarded as affecting the impartiality of the inquiry panel. Section 8(1)(a) mentions “the need to ensure that the inquiry panel (considered as a whole) has the necessary expertise to undertake the inquiry”; and section 8(2) adds that for the purposes of section 8(1)(a) the minister may have regard to the assistance that may be provided by any assessor who is to be appointed. If an inquiry panel is appointed consisting of a chairman and one or more other members, then section 8(1)(b) requires the minister to have regard to the need for balance (considered against the background of the terms of reference) in the composition of the panel. But section 8 does not state that a panel consisting of a chairman and other members is more desirable in the interests of balance in the diversity sense than an inquiry panel consisting of a chairman alone (and Mr Southey did not suggest that it does).

The Prime Minister was, in my view, plainly entitled to reach the conclusion that she did in the letter of 22 December 2017, that Sir Martin Moore-Bick has the necessary expertise to undertake the inquiry, particularly having regard to the assistance that he will receive from his assessors.

In the weeks leading up to the letter of 21 December 2017 the Prime Minister had been made well aware in correspondence from Mr Mansfield QC and Birnberg Peirce (and no doubt others) that many members of the local community in Kensington, in particular many residents of Grenfell Tower, wished the Inquiry panel to consist of members as well as the chairman. I am prepared to assume for the purposes of this application that the wishes of the survivors and of the families of those who died in the fire were a material consideration for her to have taken into account, in the legal as well as the political sense. But it is well established in public law that the weight to be attached to a material factor or consideration is one for the decision-maker. In Secretary of State for the Home Department v AP(No. 1) [2011] 1 AC 1, for example, Lord Brown of Eaton-under-Heywood said that “the weight to be given to the relevant consideration is, of course, always a question of fact and entirely a matter for the decision-maker subject only to challenge for irrationality which neither has nor could have been advanced…”.

As to irrationality, Mr Southey referred us to the decision of the Supreme Court in Pham v Secretary of State [2015] 1 WLR 1591. Lord Sumption JSC said at paragraph 107:-

“It is for the court to assess how broad the range of rational decision is in the circumstances of any given case. That must necessarily depend on the significance of the right interfered with, the degree of interference involved, and notably the extent to which, even on a statutory appeal, the court is competent to assess the balance which the decision-maker was called on to make given the subject matter… In some cases, the range of rational decision is so narrow as to determine the outcome.”

The wishes of the survivors and the bereaved, however tragic the case, as to who should constitute a tribunal to investigate how the tragedy occurred cannot be conclusive. For my part I do not think it can even arguably be said that the decision of the Prime Minister to appoint Sir Martin without other members being appointed to the Inquiry panel was outside the range of rational decisions in the circumstances of this case.

Mr Southey argued that his Padfield submissions are “supported by Article 2” of the ECHR. There is no dispute that Article 2 is in play in this case, but I do not think that it takes the Claimant’s arguments further. Mr Southey cited two cases. The first is the decision of the Strasbourg court in Oneryildiz v Turkey [2005] 41 EHRR 20. The court stated at paragraphs 93-96:-

“93.

However, in areas such as that in issue in the instant case, the applicable principles are rather to be found in those the Court has already had occasion to develop in relation notably to the use of lethal force, principles which lend themselves to application in other categories of cases. In this connection, it should be pointed out that in cases of homicide the interpretation of Article 2 as entailing an obligation to conduct an official investigation is justified not only because any allegations of such an offence normally give rise to criminal liability (see Caraher v. the United Kingdom (Dec. no. 24520/94, ECHR 2000-I), but also because often, in practice, the true circumstances of the death are, or may be, largely confined within the knowledge of State officials or authorities (see McCann and Others v. United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 47-49, §§ 157-64, and İlhan, cited above, § 91).

In the Court’s view, such considerations are indisputably valid in the context of dangerous activities, when lives have been lost as a result of events occurring under the responsibility of the public authorities, which are often the only entities to have sufficient relevant knowledge to identify and establish the complex phenomena that might have caused such incidents. Where it is established that the negligence attributable to State officials or bodies on that account goes beyond an error of judgment or carelessness, in that the authorities in question, fully realising the likely consequences and disregarding the powers vested in them, failed to take measures that were necessary and sufficient to avert the risks inherent in a dangerous activity (see, mutatis mutandis, Osman, cited above, pp. 3159-60, § 116), the fact that those responsible for endangering life have not been charged with a criminal offence or prosecuted may amount to a violation of Article 2, irrespective of any other types of remedy which individuals may exercise on their own initiative (see paragraphs 48-50 above); this is amply evidenced by developments in the relevant European standards (see paragraph 61 above).

94.

To sum up, the judicial system required by Article 2 must make provision for an independent and impartial official investigation procedure that satisfies certain minimum standards as to effectiveness and is capable of ensuring that criminal penalties are applied where lives are lost as a result of a dangerous activity if and to the extent that this is justified by the findings of the investigation (see, mutatis mutandis, Hugh Jordan v.United Kingdom, no. 24746/94, §§ 105-09, 4 May 2001, and Paul and Audrey Edwards, cited above, §§ 69-73). In such cases, the competent authorities must act with exemplary diligence and promptness and must of their own motion initiate investigations capable of, firstly, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the State officials or authorities involved in whatever capacity in the chain of events in issue.

95.

That said, the requirements of Article 2 go beyond the stage of the official investigation, where this has led to the institution of proceedings in the national courts: the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law.

96.

It should in no way be inferred from the foregoing that Article 2 may entail the right for an applicant to have third parties prosecuted or sentenced for a criminal offence (see, mutatis mutandis, Perez v. France (GC no. 47287/99, § 70, ECHR 2004-I) or an absolute obligation for all prosecutions to result in conviction, or indeed in a particular sentence (see, mutatis mutandis, Taniı v. Turkey, no. 26129/95, § 111, ECHR 2001-III). On the other hand, the national courts should not under any circumstances be prepared to allow life-endangering offences to go unpunished. This is essential for maintaining public confidence and ensuring adherence to the rule of law and for preventing any appearance of tolerance of or collusion in unlawful acts (see, mutatis mutandis, Hugh Jordan, cited above, §§ 108 and 136-40). The Court’s task therefore consists in reviewing whether and to what extent the courts, in reaching their conclusion, may be deemed to have submitted the case to the careful scrutiny required by Article 2 of the Convention, so that the deterrent effect of the judicial system in place and the significance of the role it is required to play in preventing violations of the right to life are not undermined.”

What this passage emphasises is the need, in cases where Article 2 is in play, for an independent, impartial and effective official investigation procedure, this being essential for maintaining public confidence and ensuring adherence to the rule of law and preventing any appearance of tolerance of, or collusion in, unlawful acts. The establishment of the Inquiry, with a retired senior judge conducting it, satisfies the requirements laid down in that case. The case is not authority for the proposition that Article 2 requires any particular composition of the investigating body other than that it should be independent and impartial.

Mr Southey also referred to the decision of the Court of Appeal in R(Mousa) v Secretary of State for Defence [2011] EWCA Civ 1334. Allegations had been made of ill treatment of persons detained in Iraq at various times between 2003 and 2008 by members of the British Armed Forces. The Secretary of State had set up the Iraq Historic Allegations Team (IHAT) to investigate the allegations and a separate panel (IHAP) to ensure the proper and effective handling of information concerning the cases. The Court of Appeal held that IHAT lacked the requisite independence. At paragraph 25 the court stated that “for the appellant to succeed in establishing a lack of independence it is not necessary for him to prove that some element or person in IHAT actually lacks impartiality. One of the essential functions of independence is to ensure public confidence and, in this context, perception is important”.

Mr Southey said that the Claimant was not “arguing directly that there is a lack of independence” in this case. I do not, with respect, see that it is even arguable that Sir Martin Moore-Bick lacks independence or impartiality or can reasonably be perceived as doing so. Oneryildiz and Mousa are about issues of independence, not about issues of diversity.

The letter of 21 December 2017 from the Prime Minister to Sir Martin Moore-Bick gives relatively brief reasons for her decision. The GLD response dated 12 January 2018 to the letter before claim gives far more detailed reasons. Mr Southey submits that the reasons in the Prime Minister’s letter to Sir Martin were inadequate, in particular in failing to engage with the arguments for a diverse panel put forward by Birnberg Peirce in their letters and in the report of Dr Marie Stewart which they had sent to the Prime Minister. He complains that the greatly expanded reasons in the GLD letter amount to impermissible ex post facto rationalisation.

There is a useful summary of the law given by Stanley Burnton J in R(Nash) v Chelsea College of Art and Design [2001] EWHC (Admin) 538. He said at paragraph [24] that the following propositions appear from the authorities:-

“(i)

Where there is a statutory duty to give reasons as part of the notification of the decision, so that (as Laws J put it in Northamptonshire County Council ex p D) "the adequacy of the reasons is itself made a condition of the legality of the decision", only in exceptional circumstances, if at all, will the Court accept subsequent evidence of the reasons.

(ii)

In other cases, the Court will be cautious about accepting late reasons. The relevant considerations include the following, which to a significant degree overlap:

(a)

Whether the new reasons are consistent with the original reasons.

(b)

Whether it is clear that the new reasons are indeed the original reasons of the whole committee.

(c)

Whether there is a real risk that the later reasons have been composed subsequently in order to support the tribunal's decision, or are a retrospective justification of the original decision. This consideration is really an aspect of (b).

(d)

The delay before the later reasons were put forward.

(e)

The circumstances in which the later reasons were put forward. In particular, reasons put forward after the commencement of proceedings must be treated especially carefully. Conversely, reasons put forward during correspondence in which the parties are seeking to elucidate the decision should be approached more tolerantly.”

Unlike (for example) a planning decision, this is not a case in which there was a statutory duty to give reasons as part of the notification of the decision. It would, indeed have been rather curious if, in a letter to Sir Martin the Prime Minister had explained at great length why she did not consider that she should appoint other panel members to sit with him. The reasons given in detail in the GLD letter are in my view entirely consistent with the original reasons given in the Prime Minister’s letter of 21 December 2017 and it is clear to me that they are indeed the original reasons for the decision. The Prime Minister was plainly well aware from the correspondence from Birnberg Peirce, from meetings with representatives of the community and from many other sources of the anger and mistrust to which Birnberg Peirce referred and the wish of many of the survivors and the bereaved to see a diverse panel appointed. It was not necessary for her in her letter to Sir Martin to set out in detail those arguments and to respond to them in similar detail.

The relevant law for the purposes of Ground 3 is summarised in paragraph 26 of the judgment of McCombe LJ in R(Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345. The decision-maker must be aware of the duty to have due regard to the relevant matters in Section 149 of the Equality Act 2010. An important evidential element in demonstrating the discharge of the duty is the recording of the steps taken by the decision-maker in seeking to meet the statutory requirements. The relevant duty is of the decision-maker personally. A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy. However, fulfilment of the duty is not a question of ticking boxes. There is no duty to make express reference to the regard paid to the relevant duty, although to refer to it reduces the scope for argument. Provided the court is satisfied that there has been rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, it is for the decision-maker to decide how much weight should be given to the various factors informing the decision. The court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision-maker.

As the GLD letter makes clear, the Prime Minister had regard to the public sector equality duty in the light of the information she had received about the lack of trust in the process and the ways in which any lack of trust might be addressed. The weight to be attached to the equality implications of the decision was a matter for her. I do not consider that the decision was arguably unlawful by reference to Section 149 of the Equality Act 2010.

We are not entitled to second-guess the decision by saying whether we would have reached the same decision ourselves.

There are persuasive arguments in favour of the appointment of a panel consisting of a chairman and other members. Dr Marie Stewart MBE, in her report dated 28 September 2017 entitled “The importance of social/cultural diversity in the Grenfell Tower Inquiry Panel”, argued that there are parallels between the Grenfell Tower Inquiry and the Stephen Lawrence Inquiry. It will be recalled that in the Stephen Lawrence Inquiry Sir William McPherson, the Chairman, a retired High Court Judge, sat with advisers including Dr John Sentamu (then Bishop of Stepney, now Archbishop of York) among others. Dr Stewart expressed the view that “confidence in the process was increased by the explicit attention to diversity and race inequality, in particular in the composition and processes of the inquiry”. But the arguments are not all one way. There have been inquiries by judges or retired judges sitting alone, some of them on very sensitive topics. One example, though long before the Inquiries Act 2005, was the inquiry by Lord Scarman into the Brixton disturbances in 1981. A more recent example, subsequent to the 2005 Act was the inquiry and report by Sir William Gage into the death of Baha Mousa at the hands of British forces in Iraq.

I also consider that the Prime Minister was entitled to take into account, as an important consideration, the need for the Inquiry to complete its initial report as quickly as reasonably practicable. It cannot be disputed that there is an urgent need to establish the facts of how the tragedy occurred on the night in question and to make recommendations designed to minimise the risk of such catastrophes happening in other buildings. Hence, as I understand it, Sir Martin’s decision to begin with Phase 1 dealing with these very issues.

For these reasons, I would refuse permission for judicial review of the Prime Minister’s decision contained in the letter of 21 December 2017. But I emphasise that that decision was that “additional panel members should not be appointed at this stage” [emphasis added]. I express no view on what the position would be if an application were to be made for additional panel members to be appointed to sit with Sir Martin during Phase 2 of his Inquiry, which will consider a large number of issues and where different considerations might arguably apply.

I agree.