Regulation is not always bad

I hope that the anger and sorrow after the fire have died down enough that we can draw some lessons for political debate. The culture around regulation is key to safeguarding against a repeat. London4Europe Committee member and former senior civil servant Michael Romberg draws out the implications for the debate on regulation in the context of Brexit.

Summary

Until the public inquiry has reported, any views of how the fire came to be so damaging can only be provisional. But the tragedy should lead to a change of culture in our debate on regulation. That should include dropping the assumption that every EU regulation is harmful; and the belief that the UK is disadvantaged because we meticulously implement all rules while other member states do not.

First thoughts

The emotional response to the tragedy should be an impetus to rethink some of our approaches. But that rethink must proceed coldly and rationally.

Now that the first shock and anger have calmed, we can consider some of the wider implications of the Grenfell Tower fire tragedy. They will be covered exhaustively in the public inquiry. It will make recommendations to reduce the chances of a repeat. Until the inquiry publishes its report we will not really know what happened nor how it could have been prevented. But there are some plausible explanations on the table. They link to the culture underpinning the Brexit debate. That aspect - peripheral to the issues of the Grenfell Tower fire itself - is the focus of this article.

The use of flammable materials

We do not know how the Tower came to be refurbished in a way that was unsafe. There are disagreements over what grade of material was required, whether the cladding used met the grade, and whether the manufacturer informed everyone properly of changes in its assessment of the grading of the cladding. 

But one plausible - if partial - explanation is this: Government fire regulations forbid the use of easily flammable cladding. But the overall rule for buildings is to build a safe building. So you may use flammable material provided that the overall system is safe.

That is not reckless. Regulations cannot cover every contingency. Nor should they be so precise as to stifle innovation. But the risk is that the key message of the regulation – to build a safe building – is lost.

Enforcement has been delegated to competing private sector contractors. They seem to have allowed procedures that have led to standards falling. They appear to have reached a position where to use only permitted materials is just one of several options.

It is not enough to point to a desire for profit – public bodies also have a desire to keep costs (and so taxes/ rents) down. Austerity too is not a sufficient reason – we all wish to get things cheaply so that we have more money for other spending. Nor is it enough to blame outsourcing of inspection to the private sector – the public sector has no monopoly of competence and probity.

However, having competing inspectors is high risk: as we have seen in other contexts (ratings agencies for financial products, company auditors) the need to win business puts a pressure on inspectors to lower standards.

It is culture that matters

We have to look at culture. There is a world of difference between: buying the cheapest fire protection that works; and doing just enough to get through a light touch test.

In the UK, the rhetoric about regulation under successive governments has been that regulation is overdone and it would be better if there was less of it. Although formally Governments have been committed to “Better Regulation” that has normally been interpreted as “less regulation”. Indeed rules like the need to remove a regulation – or even two – for every new one show that the quantity of regulation rather than its quality is at the heart of government initiatives.

Perhaps the Grenfell Tower fire will lead us to rethink our approach to and rhetoric about regulation. We do of course need to keep regulations under review, to see whether they still serve a useful purpose. Some should be scrapped. Some were written at the instigation of lobby groups to protect their position (do not believe that business is against all regulation – companies like rules that keep out competitors). Some restrictions have not kept pace with developments in materials or society. Some are overly prescriptive.

But most regulations are there for a purpose which makes sense. We should have a debate about what cost it is worth paying to achieve that purpose, whether a regulation is the best way of doing so and how such a regulation should be framed. But that is a different debate from the one we have now.

Implications for Brexit

It was of course just a coincidence that on the day of the Grenfell fire a private body called the Red Tape Initiative which is looking to advise the government on which EU regulations to drop after Brexit considered the EU regulations that deal with fire safety. The Leave PR firm authors of the report that the Committee considered probably wish that they had not described the Construction Products Regulation (EU 305/2011) as “red tape folly” which is “expensive and burdensome for small businesses”.

We have to hope that that coincidence will reduce the automatic assumption amongst Leavers that any regulation coming out of Brussels must be bad.

The cladding on hundreds of English buildings has now failed the emergency first tests; in Germany just one tower block has been found with cladding similar to that used at Grenfell Tower. The fire should therefore also put a dent into the widespread but unfounded belief that the UK is disadvantaged in Europe because whereas the British meticulously implement every law the other EU countries do not really bother.

Conclusion

Out of the pain of the tragedy will come the impetus to make improvements to avoid a repeat. The inquiry will be the method for learning the lessons. We can however tentatively already see some of the lessons that we should learn, in particular that we need to change the culture around regulation so that people drop their automatic view that any regulation, and especially any EU regulation, is harmful.

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