Human engineering

The Human Rights Act 1998 came into full force in the UK on 2 October 2000. While the most obvious scope for the application of the Act is in areas where human rights issues have traditionally been raised, such as criminal trials, there is certainly a potential for the effects to be felt more widely. Whether the effects will be dramatic is a different matter. At this stage, whatever you may have heard, almost everything is guesswork (although of course this article only contains informed guesswork).

Some basics first. Under the Act, the rights set out in the European Convention on Human Rights are to have effect. Individuals and companies have rights. The rights are not directly incorporated into UK law; UK citizens, and companies, cannot automatically rely on these rights in all situations. The Act applies to legislation and to the acts of public authorities.

However, existing acts and regulations, whenever passed are, as far as possible, to be read by the courts in a way which is compatible with the Convention. A new bill must also be stated by the minister responsible to be compatible with the Convention, or stated to be possibly not compatible, but that the minister wishes to proceed nonetheless (an interesting prospect). Finally, public authorities must not act in a way that is incompatible with the Convention.

The implications for building services

Which rights may be predicted to have some relevance to the conduct of building services contracts or the business of building services contractors? Most likely candidates are the right to a fair trial, the right to respect for family and private life, and the right to freedom of assembly and association.

Good (or merely ingenious) arguments may be found to support the relevance of other rights. However, the restriction to public authorities is critical. While public authorities are compelled to act in a way compatible with the European Convention on Human Rights, there is no such obligation on individuals or companies which are not public authorities. The term public authorities is extended by the Act to include people or companies carrying out functions of a public nature, and to courts and tribunals.

One question which will need to be resolved early on is whether, when deciding a dispute which does not otherwise involve a public authority, a court is obliged to apply Convention rights to the parties involved.

The Act and adjudication

The issue of a right to a fair trial may apply to adjudication, if it is found that an adjudicator is a public authority, as Judge Thornton of the Technology and Construction Court has said is the case. It may also apply if a person whose functions are of a public nature, is carrying out an act which is not private.

This is the sort of argument which some lawyers relish but which makes the eyes of those not directly affected glaze over. But the outcome could have a huge effect on adjudication. If an adjudicator is a public authority, then it may be that the adjudication procedure set out by the Housing Grants, Construction and Regeneration Act does not comply with the requirement for a right to a fair trial. In particular, adjudication rules do not provide for a public hearing, and the defendant may not have adequate time for the preparation of the defence. Against this, it may (for example) be said that in adjudication, rights are not determined. There is simply a provisional ruling which is only binding until the dispute is finally determined by the Court.

As regards employment effects, arguably the imposition of anti-social working hours by an employer could infringe the right to private or family life, although there would be significant counter-arguments. Examination of private correspondence, including electronic correspondence could, depending on circumstances also infringe the right to private life.

On the other hand, if the employer is not a public authority nor exercising public functions, then it seems that Act will only bite in so far as a court, when considering some case involving such an issue, decides that it should apply the right in question. However, remember that public authority is not exhaustively defined and functions of a public nature is not defined at all – giving plenty of scope for argument.

The right to freedom of assembly and association includes the right to join trade unions. However, there is no obligation on an employer to recognise a trade union. Again, an issue arises as to the public nature, or otherwise, of an employer's general functions. At the present time there are probably few major implications, given the terms of the Employment Relations Act 1999.

The effect on Building Regulations

In some European cases, the right to private or family life has been found to be infringed by environmental pollution. Conceivably this could have implications for the Building Regulations, and it is almost certain to have implications for planning applications. Another planning issue is the employment of inspectors by the government; this may infringe the right to an impartial hearing.

It may be that one of the major effects of the Human Rights Act will be people asserting that they have certain rights and threatening to litigate them, even if the grounds on which claims are made are, or appear to be, insufficient. Lord Woolf, a senior judge who was primarily responsible for significant reforms to civil procedure rules which came into force in 1999, has already warned lawyers against taking fanciful human rights points.

Experience of rights provisions in other jurisdictions suggests that legislation which confers rights in broad terms can be interpreted broadly by the courts, and often in ways which are completely unforeseen. There is no guarantee that UK courts will interpret provisions in the same way as European courts (although previous European decisions have to be taken into account).

All in all, it would be unwise to bet against the Human Rights Act having some significant and perhaps surprising ramifications.