Many local authorities are now requesting assurances at tender stage that consultants can comply with the act in performing any of the authorities' functions. There is often no attempt to identify which "functions" could be subject to the act, leaving the consultant to try to determine this. Some local authorities are also requesting indemnities against potential liabilities under the act, including payment of damages, reinstatement costs, or the costs and expenses resulting from a claim.
The two rights most likely to be affected by a building project are those of privacy and property. Rights of privacy can be interpreted widely, as in the case of Lopez Ostra vs Spain. The Spanish government was found liable for a waste treatment plant producing fumes and smells that had been built close to homes. This was found to have interfered with individuals' enjoyment of their family and private lives. In another case, Khatun & Ors vs UK, the right to privacy was claimed to have been infringed because serious dust contamination caused by the construction of the Limehouse Link in east London meant that residents could not use their gardens or open their windows. The right to life may also be relevant where hazards could constitute a threat to health.
Convention rights are not absolute and a defence of legitimate interference can be available. In the case of Powell and Rayner vs UK, although the quality of the applicants' lives was found to have been adversely affected by the noise generated by aircraft using Heathrow, it was held that the existence of large airports was necessary in the interests of the economic well-being of the country.
It is unlikely to be possible for the consultant to ascertain whether there could be an infringement on any particular project because of the present uncertainty over the extent of these rights and their interpretation.
What consultants could do is put in place a programme of education for staff identifying potential areas of liability in a particular project and establishing a regular audit procedure to monitor compliance. This could give consultants a competitive edge in bidding.
Absolute assurances about a consultant's own input into the project cannot be given because some matters might be outside the consultant's control. For example, consultants have no control over where the project is located and who might be affected. The consultant should check the wording of any indemnity carefully and ensure that it covers only matters in its control.
Further, many services formerly provided by the state or by local authorities are now provided by a consultant acting alone or with others. If that occurs, the consultant becomes subject to the act and incurs liabilities under it.
Authorities want assurances from consultants over the Human Rights Act While the interpretation of the act is uncertain, adherence could give your bid the edge
Although the act applies only to public authorities, a public authority may include "any person certain of whose functions are functions of a public nature". A victim of an infringement of a European right may then be able to bring a claim, provided this arises from the exercise of public and not private functions. The criteria for determining whether a function is "public" were not listed in parliament and there is no definition in the act.
As the act is still in its infancy, it is not clear what approach the courts will take. Some guidance is provided by the decision in Foster vs British Gas. There, the European court looked at three criteria: was British Gas providing a public service? was it under the control of the state? and was it in possession of special powers? The courts in the UK have considered whether the function is performed for the benefit of the public and not for private gain; whether, but for the existence of the body, the state itself would almost inevitably have had to intervene; and whether there is a governmental function.
Other factors that may be relevant are whether the duty performed is of public significance and whether the rights of individuals are affected in the performance of the duty.
It may well be, therefore, that some of a consultant's functions under arrangements with local authorities could be considered the acts of a public authority.
However, as the consultant's services are being provided for private profit, and in many cases would not involve special powers or a governmental function, it may be possible to argue that the consultant is not exercising public functions.
The consultant needs first to consider whether the particular project could have a public function element that is being passed on, and then whether the exercise of that function could affect individual rights.
Where consultants take on projects with potential public functions, they should also check whether their insurance covers any claims under the act, that their partners are also adequately insured and that the contract between them sets out how liability under the act is to be dealt with.
Postscript
Rachel Barnes is a partner in solicitor Beale and Company.
