EU Referendum

Booker: Grenfell – the EU dimension


Already, there have been mumblings in the shrubbery about EU involvement in the Grenfell disaster, with an article in the Express asking: "Did EU regulation mean deadly cladding was used on Grenfell Tower?"

The Express story focuses on EU regulations which "set out rules for buildings’ energy consumption with Britain signed up to the 2010 Energy Performance of Buildings Directive", telling us that:
Article 24 of the directive was cemented into UK law in April 2014 and a Government report says "bringing as many residential and commercial buildings as possible up to a high level of energy performance is a priority for the UK Government".
However, turning to Article 24 of Directive 2010/31/EU, it very clearly does not require cladding, deadly or otherwise, to be used on any building. In fact, one is hard put to see quite what the relevance of the article is to anything. Headed: "Revocation of the delegation", it tells us that: "The delegation of powers referred to in Articles 5 and 22 may be revoked by the European Parliament or by the Council".

Nevertheless, the Directive does have considerable relevance, its energy efficiency requirements for new and modified buildings having been enacted in the Building Regulations 2010 which came into force on 1 October 2010 (not 2014 as the Express asserts). Part 6 is the relevant code and would have applied to Grenfell House. Thus, the requirement to insulate the building most definitely has an EU dimension.

That said, there are no legal requirements as to the way the improved energy efficiency should be achieved – and therefore it cannot be said that there was any specific EU requirement to install combustible cladding to the exterior surfaces of the tower block.

The omission of any specific requirement has brought the likes of Frances Coppola and Steve Peers out of the woodwork, squeaking with rage. Tweets Coppola: "FFS. No. EU energy efficiency regulation did NOT mean flammable cladding had to be used. How low can Kippers sink?"

Steve Peers then tweets that: "the EU energy efficiency law does not override safety rules, as the preamble states expressly". The correct term here is "recital" – and you would expect a self-proclaimed expert in EU law to get that right. But never mind. Peers quotes the recital (No 8) in full, as follows:
(8) Measures to improve further the energy performance of buildings should take into account climatic and local conditions as well as indoor climate environment and cost-effectiveness. These measures should not affect other requirements concerning buildings such as accessibility, safety and the intended use of the building.
He's being a little bit precious here, as the recital does not specifically mention fire prevention, and nor does the need to maintain a high level of fire protection appear anywhere in the Directive. Nevertheless, if the Directive does not explicitly mention fire, the Building Regulations do. If one refers to Part L, this reads across to the "Approved Document L1B" on the conservation of fuel and power.

Under the heading, "Consideration of technical risk", it tells us that building work to existing buildings must satisfy all technical requirements, and that when considering the instalment of energy efficiency measures in dwellings, "attention should also be paid in particular to the need to comply with Part B (fire safety) …".

Ostensibly, this seems to support the Peers assertion, except that – as always – the devil is in the detail. But people such as Peers do not do detail (and he tends to run away and hide when challenged). In order to comply with Part B, one must refer to "Approved Document B". Either of the two volumes will do, as they both give the technical specifications for fire resistance for external cladding.

Now here it gets complicated. Products can actually comply with a variety of standards, including the relevant British Standards. But not defined by any standards institution is a specification specific to Part B, known as the "National Standard", in which context, the product must be conform to Class 0.

Defined in the Standard, this applies only to the surface of the material, in this case a composite made from an aluminium skin with a highly combustible core. Basically, the flammability requirement applies to surface propagation of flame, a test that the aluminium skin can easily pass.

That, then, would look to be the cause of the problem – a gravely deficient standard which did not allow for flames from inside a flat venting up the cavity between the cladding and the structure and setting fire to the combustible core, with the tragic effects we have seen.

As to this standard, the official test specifically excludes the "chimney effect" scenario, with the fire originating from inside the building. Even with the lethal defect, this cladding will pass the official test and thereby comply with Building Regulations.

But that is not the end of it. Although the fire safety requirements are set by the National Standard, this in turn takes its parameters not from the British Standard but from the applicable "harmonised standards". This is part of a system introduced by the Construction Products Directive, and revised by Regulation (EU) 305/2011. In the UK, it is implemented by our Building Regulations. 

In the specific case of external cladding, the UK applies a standard for blocks above 18 metres using EN 13501-1, class B-s3, d2. To all intents and purposes, the National Standard, while not directly comparable with the EN, is no more severe than it. Anything which passes the relevant part of the EN can be assumed to comply with the Building Regulations Part B requirement.

This brings us to the crux of the matter. The EN standard, in respect of fire safety in relation to external cladding is known to be deficient. Even the most rigorous application of material and individual component testing will not necessarily predict overall system performance, and cannot therefore be used as a valid or even useful indicator of its safety. The European standard is fundamentally flawed.

Arguably, this situation could be resolved by the UK taking unilateral action and defining a new, more rigorous standard of its own. But there we are hit by the EU dimension. Because of the Construction Products Regulation and its preceding Directives, in force since 1989, the definition of building standards is what is known as an "occupied field". The UK no longer has the authority to define its own.

Much is made of Germany having more rigorous standards, but my understanding is that the Federal Government had them in place before the first (1989) directive. It is allowed to keep its existing codes in place, as indeed are we, allowing the progressive implementation of European standards.

The way this works is that the standards are voluntary, unless they've been officially adopted as a European Harmonised Standard. The cladding standard is not an official harmonised standard, so different Member States are free to apply their own standards.

However, when CEN National Members (including all EU Member States) decide to implement a standard, they are obliged to withdraw any National Standards conflicting with it. In German states, adoption of new codes is now obligatory. And under EU law, once they've  adopted a standard (even though voluntarily), they cannot implement new standards which are more severe than, or conflict with, harmonised standards.

That is not to say that the UK would necessarily have introduced new standards, had we been an independent state. But under the current regime, there is no point in even trying. We are a passive law-taker and no longer think for ourselves.

What is fair to say though, is that the EU – having taken away our scope to act independently – has dropped the ball on fire prevention. Obsessed with its climate change agenda and the need to meet Kyoto commitments, it has channelled all its (limited) energies into "green" standards for buildings, and neglected other matters, particularly fire safety.

Reviewing the situation, one can see complaints going back ten years that complex structures are not covered by existing regulatory requirements. Before that, even, stretching back nearly 20 years, the fire potential of external cladding has long been a concern.

After a fire in a multi-storey block of flats in Irvine, Ayrshire on 11th June 1999, which killed an elderly man, the Select Committee on Environment, Transport and Regional Affairs set up an inquiry to review the safety of cladding on tower blocks.

Evidence offered to the inquiry published in July 2000, (including from the Fire Brigades Union,suggested that the "guidance" given in Approved Document B "may not be adequate for the purposes of ensuring the safety of external cladding systems in a fire". The Committee was also told by Peter Field of the Buildings Research Establishment, which had done a great deal of work on these issues, that the existing guidance was "far from being totally adequate".

Tragically, while the Committee recommended improvements to existing legislation and testing, neither it nor the Government acknowledged the EU dimension or the need to secure EU Commission approval for any changes. And no fundamental changes were made.

There is no record even of the Commission having been approached to review its own requirements, but it is a matter of record that, having deprived us of the power of define new standards, the EU has not stepped up to the plate and filled the regulatory void. It may not, therefore, be directly responsible for the fire in Grenfell Tower, but it cannot be completely absolved from responsibility. In any reckoning, it too must join the list of organisations that has had a hand in this disaster.

Enter now Christopher Booker who writes in today's column that it was certainly an ominous coincidence that 1974, the year Grenfell Tower was opened was also the year that Hollywood released what was arguably the most famous "disaster movie" ever made, The Towering Inferno.

But, on Wednesday, as we woke up to the horror of what was happening, he received an email that added another curious detail to this awful story. It was from the man who back in the Seventies sold to the local council the original cladding for Grenfell Tower. As he explained, it then consisted of Glasal panels in which were sealed white asbestos cement, so tightly compressed that no fibres could escape.

"It was totally safe", he told Booker, "and would certainly have stopped the spread of any external fire; unlike this new cladding, which contains combustible plastics which can spread a fire up a building so fast that in some countries it has already caused whole buildings to go up, and in others it has been banned".

A much more immediately relevant point, however, on which the forthcoming inquiry will certainly have to focus, Booker says, is what might be called the "European" dimension to this tragedy. So far wholly missed has been the fact that making construction regulations, including those relating to fire risk, is an exclusive "competence" of the EU. Britain has no right to make its own, without Brussels permission.

Furthermore in 2014 the Department of Energy and Climate Change issued its National Energy Efficiency Action Plan, setting out how it planned to meet its EU targets for reducing “carbon emissions” (and also those set under our own Climate Change Act).

In particular, it emphasised the need to comply with Directive 2012/27/EU on "energy efficiency". This explained that the top priority was to improve the insulation of buildings, responsible for 40 percent of all emissions. Local authorities were thus made aware of the section on renovating older buildings, adding an extra impetus to the growing body of climate change legislation.

When Kensington and Chelsea council chose the new cladding for Grenfell Tower it would, therefore, have known that top of the list was the need for "thermal efficiency". On this score, plastics such as polyurethane, polyethylene or polyisocyanurate rated most highly, despite their fire risk. There was even financing available under the government's Green Deal scheme.

Booker long ago took a personal interest in the estate on which Grenfell stands. He spent much of the Seventies investigating the disaster that had been inflicted on so many cities by the Sixties mania for massive "comprehensive redevelopment schemes" and giant council tower blocks.

When he began in 1972 with a book called Goodbye London: An Illustrated Guide to Threatened Buildings, listing all the demolition schemes then planned across London, it opened with a page of pictures showing the vast area of pleasant, human-scale 19th century streets in north-west Kensington shortly to be demolished for the estate that would include Grenfell Tower.

By 1979, Booker had been commissioned by the BBC to make a two-hour television film, City of Towers, which for the first time told the whole story of how the destruction of our cities had been inspired by the megalomaniac dream in the Twenties of the Swiss architect Le Corbusier; and how this led 40 years later to those vast dehumanised council estates, dominated by tower blocks like Grenfell, half of which have since been demolished.

The way our politicians, national and local, were taken in by this maniacal vision was yet another perfect case-study in the deluding power of groupthink. As so often, a beguiling dream had led in reality to a nightmare reality. Grenfell Tower stands today as the most chilling tombstone yet to that mad dream.

As Booker concludes his own piece with that thought, we can also conclude that the Tower stands as a monument to the breakdown of the UK system of government – both locally, when we observe the response to the disaster - and also at that European level where membership of the European Union has deprived us, in important respects, of the ability to govern ourselves.