The Human Rights Act

On Monday 2 October, the Human Rights Act comes into force, incorporating the European Convention on Human Rights into English law. We all know that the act concerns focus groups, minorities and defendants in criminal trials. It will also profoundly affect construction and its concomitant disputes.

The convention guarantees for everyone, whether an individual or a company, certain basic rights. These are the core rights that every civilised society should provide and they cover the protection of life, home and property, personal and religious beliefs and a fair trial.

The convention was drafted in the aftermath of the Second World War by English lawyers and came into force in 1952. It set up a European Court of Human Rights in Strasbourg to which individuals could apply for final legal redress. The principal benefit for a successful claimant is the knowledge that the UK has an international obligation to amend a non-conforming law for the future. The UK first allowed its nationals to petition the Strasbourg court in 1966.

Now, thanks to the act, convention rights will be directly enforceable in a domestic court. A huge amount of case law has been built up by the Strasbourg court. Most of it is unknown to English lawyers, but all of it will soon be directly applicable in English court proceedings.

The act is skilfully drafted. It requires public bodies to act in a way that is compatible with the convention rights of everyone affected. A public body includes anyone fulfilling a public function and would include a judge, adjudicator, local authority or public procuring body. If a right has been infringed, the “victim” may either bring separate legal proceedings or rely on the infringement as a defence. The court or tribunal concerned must take account of Strasbourg court decisions or opinions and, so far as possible, interpret UK legislation to be compatible with the convention.

The most pertinent right is provided by article 6, which guarantees the right to a fair trial. This is a wide-ranging stand-alone right that guarantees ready access to a court or tribunal. Every dispute must be determined in a reasonable time by an independent, impartial tribunal. There must be an effective and fair public hearing and a reasoned decision. Each contestant must be afforded “equality of arms” and private contact with their legal or other representative.

Other pertinent rights are the right to the peaceful enjoyment of one’s possessions, to freedom of thought and expression and to the protection of one’s home from interference by a public authority.

Dispute resolution

The obvious area where the act will bite is dispute resolution, particularly adjudication, arbitration enforcement and litigation. Alternative dispute resolution, certifiers’ final certificates and expert determinations may also be affected.

Adjudication

 Since adjudication is a statutory process that is compulsory for the responding party, adjudicators and adjudicator-nominating organisations are public bodies. Adjudications are tribunals and they resolve disputes, even though their decisions are only temporary pending the conclusion of any subsequent arbitration or litigation. Thus, adjudication parties are entitled to the rights provided by article 6. A nominating body must also comply with article 6 and ensure that only independent adjudicators are nominated. Finally, a court may enforce an adjudicator’s decision only if it was made following a procedure complying with article 6.

It is difficult to predict the extent to which adjudication procedures will have to change once the act comes on stream. Adjudicators will still be able to take the initiative in ascertaining the facts and the law. However, they will have to ensure that adequate time is available to each party to prepare and present its case and that each party has a fair opportunity to respond to evidence or facts. Neither party must be at a substantial disadvantage in putting its case. If, in a particular case, the tight statutory time limits unfairly disadvantage one side, the adjudicator may have to decline to make a decision. It will also be very important that an adjudicator has no prior interest in or involvement with either side. The statutory immunity granted to an adjudicator from being sued, except where there has been bad faith, may need modification since the immunity could, in some circumstances, deprive an aggrieved party of an appropriate remedy.

If the tight statutory time limits unfairly disadvantages one side, the adjudicator may have to decline to make a decision

Arbitration

 The traditional view is that arbitration is a consensual process and is subject to the autonomy of both parties. On this view, the parties have agreed to forgo their convention rights in favour of the parallel rights provided by the Arbitration Act. However, there are two important inroads to that exclusionary approach.

First, many arbitrations are imposed on a party by commercial necessity arising from a requirement that the work be tendered for on a standard-form arbitration clause. Convention jurisprudence provides that convention rights cannot be excluded where one party has been compelled to arbitrate, and the relevant Strasbourg case law takes a broad view as to what constitutes compulsion.

Second, any court asked to enforce an arbitrator’s award cannot merely rubber-stamp it. The judge must observe article 6 and cannot order enforcement if the award was published after non-compliance with a party’s convention rights. Only time will tell whether the interventionist approach allowed to arbitrators by the Arbitration Act or the limited rights of appeal provided to arbitration parties sufficiently comply with article 6. The automatic entitlement to a stay of court proceedings where there is an arbitration clause, name-borrowing procedures and tripartite arbitration clauses may also be subjected to investigation under the act.

It could become commonplace for the losing party in an arbitration to decline to honour the award as a means of testing a complaint of unfairness or some other convention irregularity. Undoubtedly, some of the problems I have highlighted will give rise to an HRA remedy.

Litigation

Court proceedings must comply with article 6. The new Civil Procedure Rules are just beginning to bed down, but these must now be tested against such convention principles as fairness, impartiality and equality of arms. Candidates for consideration will include the limited availability of funding, automatic time limits, mandatory sanctions for non-compliance with certain court orders, single joint experts, claimants’ written settlement offers and the common law immunity from being sued that is available for the reports and agreements of expert witnesses.

ADR

 Although ADR does not involve dispute resolution by a court or tribunal, the process of ADR might be susceptible to attack if there is any form of compulsion to embark on ADR or any form of sanction for those who refuse to mediate or are reluctant participants. Such sanctions could constitute a denial of access to the courts. Equally, compulsory recourse to expert determination or to a certifier’s final determination would infringe article 6.

Publicity

It is unclear how far the courts will go in enforcing, in adjudications and arbitrations, the requirement that a court or tribunal should hold its proceedings in public and that judgment should be publicly pronounced. The convention allows the requirement of public justice to be dispensed in appropriate cases, but the decision or award of an adjudicator or arbitrator might, on occasion, have to be published and both may often be regarded as public documents.

Other effects of the act

Since all public authorities must ensure that their actions are compatible with the convention rights of every affected person, all disciplinary procedures of professional bodies and trade associations will have to comply with article 6.