Two key witnesses from the company that sold the deadly cladding for Grenfell Tower are refusing to attend the inquiry, despite confirmation from the French Embassy that its laws should not prevent them from doing so.
The inquiry wrote to lawyers representing all parties today, saying that two of four Arconic witnesses based in France and Germany have said they will not attend, and the other two are yet to confirm.
The letter, seen by Inside Housing, said this was despite confirmation from the French embassy in London last week that a law known as the ‘French blocking statute’ should not prevent any witnesses from giving evidence.
The witnesses had been relying on this legislation as justification for their non-attendance.
But after the inquiry passed on the embassy’s letter to lawyers representing the Arconic witnesses on 9 December, two of the witnesses, Gwenaelle Derrendinger and Claude Wehrle, confirmed that they will still not come to the UK to give evidence.
A further witness, Claude Schmidt, who is still employed by Arconic’s French subsidiary, was said to be willing to attend under certain conditions. The inquiry said it was “carefully considering” these “but at the moment we do not think it will be possible for us to accept most of them”.
The inquiry said it is “seeking further clarification” from a final witness, Peter Froehlich, who is based in Germany and has not yet confirmed his position.
There is no legal mechanism to force overseas witnesses to attend a public inquiry, meaning the inquiry is likely to present the evidence it would have questioned them on in their absence.
The news is likely to enrage bereaved and survivors of the fire, some of whom held a protest outside the French embassy on Monday calling on the French government to ensure the witnesses attend.
Arconic produced and sold the aluminium composite material (ACM) panels that were fitted to the walls of the tower despite the fact that they had a core made of polyethylene, a plastic that burns with a similar ferocity to solid petrol when ignited.
The first phase of the public inquiry concluded that these panels were the “primary cause” of the rapid fire spread seen at Grenfell Tower on 14 June 2017. The blaze killed 72 people, including 18 children.
The inquiry is currently examining the testing, sale and marketing of the materials used in the cladding system and the evidence of the Arconic witnesses is viewed as crucial in understanding how such a dangerous material came to be specified for a high-rise building.
Survivors’ lawyers last month revealed shocking internal Arconic emails that appear to show that senior employees of the firm became aware of the dangers of the product in 2005, but hid this from the market and certifiers.
One email, sent by Mr Wehrle in 2015, said: “PE is dangerous on facades, and everything should be transferred to [fire resistant] as a matter of urgency… This opinion is technical and anti-commercial, it seems.”
But Mr Wehrle, along with the other witnesses, had declined to attend based on the effect of the ‘French blocking statute’, which makes disclosing commercial information to a court in a foreign jurisdiction a criminal offence.
The inquiry had asked the Foreign and Commonwealth Office (FCO) to intervene to gain an assurance from the French government that this law would not be engaged should the witnesses attend.
In a letter sent last Monday – also seen by Inside Housing – the French Embassy wrote to the FCO saying that the French government did not have the power to disapply the law, and that interpretation of criminal laws is a matter for French regions.
However, it added: “The French authorities share the British authorities’ desire for full light to be shed on that tragic fire…
“It has emerged from analyses conducted by the French administration that… the inquiry does not appear to fall under the scope of [the relevant passage] of the aforementioned act.
“Consequently the French authorities do not share the position that the blocking statute constitutes an obstacle to the examination of Arconic’s employees before the inquiry. The company has been informed of that position.”
Addressing the proposed non-attendance in his opening statement, Richard Millett QC, counsel to the inquiry, said there is “no legal mechanism” to serve a notice on witnesses based outside the UK to compel them to attend the inquiry.
“In the end, if Arconic and its witnesses seek to stand on their strict legal rights and refuse to come to give evidence, that is a matter for them,” he said. “They may find that the [bereaved and survivors], other core participants, and indeed the public generally take a dim view of their conduct regardless of the legalities.
“Doubtless Arconic will have considered the impact of its witnesses’ refusal to give evidence on how they are viewed in the world beyond this inquiry, and in particular by the markets, both for their own products and the financial markets.”
He said if they did not attend, the inquiry would present the evidence they would have been questioned on in their absence.
An Arconic spokesperson said: “AAP SAS [the French subsidiary of Arconic] has fully co-operated with the authorities and the inquiry at all times. The three individuals who have declined to participate in the inquiry have taken the advice of separate counsel and AAP SAS does not have any influence on those decisions. The three witnesses who are represented by the company’s counsel are prepared to provide evidence including Claude Schmidt, AAP SAS’s corporate representative.”
This week the firm was also named one of America’s most responsible businesses by the publication Newsweek.
The firm has argued its cladding was “misused” on the tower in a way that was “entirely peculiar to Grenfell” and “could not have been predicted”.
It has said that the specific design involved “numerous departures from building regulations” and that the product was “capable of being used safely if adequate safety measures are designed”.
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