“What’s adjudication?” he asked. “Well, it’s not arbitration, it’s not mini-litigation, it’s not expert determination,” I began unhelpfully.
Irritably, the mouth at the flap asked if it was a dispute resolution system. “No, no,” I replied, “the word ‘resolution’ was omitted by parliament.”
“Is it enforceable?” asked the mouth at the flap. “No, you have to go to court for that,” I said.
“Does it replace arbitration or litigation?” “No, it changes nothing that existed before. It’s a sort of new layer which entitles either party to call for an outsider to independently apply the rules of the building contract to a squabble.”
“So, he’s a sort of contract administrator?” suggested my flap. “Yes, I guess so. And his decision about the squabble is temporarily binding. It sticks unless and until the squabblers take their argument to arbitration or litigation.”
My inquisitor at the Human Rights door still wasn’t convinced he could let me in.
“I don’t think the Human Rights Act has any jurisdiction over adjudicators, who don’t sound to be much more than occasional contract administrators.”
But hang on a minute. There are lots of adjudicators up and down the country who dish out binding decisions. They have probably misunderstood their job. The adjudicator is more akin to the engineer in the ICE contract who makes ‘engineer’s decisions’ which are binding pro tem, or the architect in JCT contracts deciding extensions of time.
The referee has no judicial powers; he merely announces what he thinks the contract requires; he’s a contract administrator
As for the Human Rights Act, it is true that article 6 renders unlawful any decision on your civil rights and obligations that is unfairly arrived at. But wait a moment – article 6 has a preamble. It only has jurisdiction over decision- making bodies that are “public authorities” and over “any person, certain of whose functions are of a public nature”. And when I asked the Home Office what a public authority was, they said it referred to government departments, local authorities, the police, prisons, immigration officers, public prosecutors, courts, tribunals and those who exercise a public function.
Pause a moment. Can you see anything here that makes a QS adjudicator a public function? Is he a public authority? Is he a tribunal? That word has a very wide meaning. This country has close on 100 tribunals, including ombudsmen and other regulatory bodies. All have judicial functions, and they handle more cases than the civil courts – the largest handles 300 000 cases a year. These panels implement department policies of a public nature, and answer ultimately to “ministerial” responsibility.
This is clearly all public authority stuff and cries out for supervision by the courts by way of article 6 human rights fair play. These low-level tribunals must not be unfair, lack independence, want for impartiality. But I still hesitate to characterise that QS adjudicator who is asked to settle a quarrel about a bit of brickwork off the Market Square in Barnsley as a public authority.
Surely, this QS adjudicator is deciding the parties’ “rights” and is in the contract by virtue of an act of parliament. True. But the act of parliament, the Construction Act, does not give a set of judicial powers to the referee. He only administers the contract; he applies the rules in the contract to a squabble; he can’t order people to do things, or stop doing things; he can’t order witnesses to turn up; he can’t order evidence on oath. This referee merely announces what he thinks the contract requires.
Do you see why I call this person a contract administrator?
Simply because parliament said it was a good idea to have independent contract administrators decide quarrels doesn’t make this idea a public authority or public nature.
The face at the flap of the Human Rights Castle now made his announcement. There is no jurisdiction to examine anyone who is not a public authority, or doing work of a public function. Indeed, section 6(5) of the act says: “A person is not a public authority if the nature of the act is private.” The QS adjudicator in Barnsley remains a private person performing a private function merely for the parties to the contract. Adjudication stays outside the castle – but woe betide any QS adjudicator who is unfair or wants for impartiality.