James McMillan: Grenfell will cast a shadow over all future construction

James McMillan is an Associate, Maclay Murray & Spens LLP

In the wake of the London tragedy, the Scottish Government convened a ministerial working group to examine building and fire safety regulatory frameworks, focusing initially on high-r ise domestic buildings. Alongside this, government officers and fire-fighters are reviewing all Scotland’s high-rise domestic buildings and construction works.

This review has already shown further investigations and remedial works will be required to tackle health and safety issues arising from the use of aluminium composite material (ACM) in buildings; 44 schools in 14 local authorities have reported that a type of ACM was used on a small number of low-rise buildings. Checks are being carried out to ensure all of these have been fitted in accordance with building regulations.

In the meantime, were the worst to happen again, who would bear the brunt of the criminal and civil law consequences? Depending on the circumstances, responsibility could lie with the builder, the owner, the managing agent or a combination of these parties. So, in a situation like Grenfell, some or all of these bodies could face criminal prosecution, depending on when a defect came into existence.

The Grenfell Tower disaster should concentrate the minds of any organisations associated with construction

Builders and developers need to ensure the projects they have worked on are up to standard. The Construction (Design and Management) Regulations 2015 place obligations on a principal designer (during pre-construction), principal contractor (during construction phase) and the client of a project to ensure health and safety obligations are complied with. Aside from that, civil claims for damages can potentially be brought against all parties that play a role in contributing to a fatal accident. In relation to accidents in buildings, that could include the designer, builder, landlord or building manager.

An incident on the scale of Grenfell Tower will bring massive adverse publicity and result in both a criminal prosecution and, potentially, a substantial fine. In the wake of Grenfell, future public tendering processes could be difficult for any business with a history of convictions for health and safety offences.

Businesses concerned about such risks can take practical steps in any fire risk assessment:

l Ensure any health and safety or fire risk consultants employed are competent and have experience of assessing your kind of business and premises. Request references from previous clients in similar premises; l Ensure fire alarms and emergency lighting are installed to British Standards and certificates of compliance and installation have been provided;  l Ensure you provide the health and safety or fire risk assessor with access to all areas and information; l Ask for proof that the assessor has sufficient insurance and keep records of the steps taken in selecting your fire risk assessor; l Ultimately, businesses should bear in mind that health and safety regulations have been developed and adopted because they save lives and protect people’s health and wellbeing.

Health and safety responsibilities are therefore of paramount consideration for all organisations involved in construction. Not only must primary contractors – and indeed commissioning authorities themselves – make sure all their plans and practices are up to the highest standards of safety and design, they have a responsibility to ensure those appointed by them to carry out work are fulfilling obligations and reporting to the Health & Safety Executive if necessary.

All those involved in construction need to play a part in restoring public trust by ensuring buildings are as safe as they realistically can be.

James McMillan is an associate, Maclay Murray & Spens LLP