A question of human rights

Roger Button wrote in Building (26 February 1999) of his concern that the Human Rights Act 1998 might constitute a threat to the right to adjudicate created by the 1996 Construction Act less than a year ago.

Adjudication could prove to be good news for the construction industry. It would be a great shame if this initiative to facilitate a move away from long, entrenched and costly dispute resolution were to fail for technical, legal reasons. But does the Human Rights Act present such a major threat?

Section 3 of the act provides that legislation should be read in a way that is compatible with the European Convention on Human Rights. This however, does not affect the validity, continuing operation or enforcement of any incompatible primary legislation.

If UK legislation is incompatible with convention rights, section 4 of the act gives the court the discretion to make a declaration of incompatibility (which has no operative or coercive effect and does not affect the validity, continuing operation or enforcement of the legislation). Among the convention rights relevant to the act is article 6, which relates to the determination of civil rights and obligations or criminal charges. This article provides that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

Is adjudication under the Construction Act therefore illegal? Button argues that it might be and so the legislation must be amended. It is not so much a question of whether adjudication is legal (or not), but more a question of compatibility. If it is not possible to construe the right to adjudicate under section 108 of the Construction Act in accordance with article 6 of the convention, adjudication would not be invalidated, nor would its operation or enforcement be affected. The court might have the discretion to make a declaration of incompatibility but even that would not affect the validity or enforceability of adjudication.

Next, one must test the right to adjudicate and the procedure prescribed in the Construction Act against article 6. The key question is whether the right to adjudicate created by the Construction Act infringes the right to a fair trial prescribed by Article 6. In short, the answer to this question must be no, for the following reasons:

• Adjudication is a right that must be made available in any construction contract but the legislation that creates this right does not make its use mandatory, nor does the right to adjudicate in any way supplant the right to refer matters to the court

• Adjudication is an interim (albeit enforceable) ruling. The result only becomes final if the parties agree or if it is confirmed in litigation or arbitration. It is therefore always subject to the right of either party to agree a different result or refer the matter for final determination

  • Article 6 gives everyone the right to a fair and public hearing
  • An adjudicator is required to act impartially
  • The robust adjudicator can deal with ambushes

• Adjudication is private. There is no public hearing and no public pronouncement of the judgment. The same is true of arbitration and applications in the courts heard in chambers, such as summary judgment and injunction proceedings. If adjudication were declared illegal or incompatible on this basis, arbitration and other summary procedures would also be illegal.

Section 108 does not include an express requirement that the adjudicator be independent or act fairly, but this is not incompatible with article 6. An adjudicator is required to act impartially. In fact, many of the adjudication rules available require the adjudicator to be independent and some specify that he must conduct the proceedings fairly.

What constitutes a fair hearing must be judged in the circumstances and in the context of the act itself, but it is unlikely that an adjudication conducted impartially would not also be fair.

It is also possible to have a fair hearing without having an oral hearing, and adjudicators have the power to take an initiative to establish the facts and the law.

Beyond these issues, the imperfections of adjudication identified by Button relate more to the manner in which proceedings might be conducted by the parties rather than the procedure itself. This is an important distinction.

The timetable is tight but the purpose of the procedure is to enable the parties to obtain a quick, interim decision. There might also be scope for ambush, but a robust adjudicator should manage such situations.