Human rights: Fair tort Convention

Under Section 6 of the HRA it is unlawful for a public authority to act in a way that is incompatible with a Convention right. PFI authorities such as local authorities and education authorities carry out public services and consequently, under the HRA, are public authorities.

The effect of the HRA however is to create a much wider class of public authority. Under the Act it is the substance of an activity that is the determining factor. Consequently PFI contractors who manage contracted out prisons or hospitals will be public authorities because they are providing services for the general community that would otherwise have been provided by central or local government.

When a PFI contractor acts as a public authority it could be liable for compensation claims from individuals who claim that their human rights have been breached.

In the case of the private security company managing a contracted out prison, it may well find that prisoners may sue it if they consider their Convention rights under Article 3 (freedom from torture and inhuman treatment) are breached because of prison overcrowding.

In the case of a PFI contractor managing a hospital it too may face claims if, in the provision and management of services, it acts in a manner that does not respect Article 8 of the Convention (the right to respect for private and family life) by monitoring the private telephone calls and emails of staff.

It is unlikely that subcontractors will be seen as public authorities because the PFI contractor always retains ultimate control of the PFI project. However, contractors cannot afford to be complacent. They should ensure that their employment practices (see article on the HRA and CCTV, TheFB 23 June page 23) are compatible with the HRA.

As there is a risk that parties involved in PFI transactions may be susceptible to HRA claims they should take this into account when pricing services. Risks can be mitigated however by ensuring that appropriate indemnities are in place between the PFI authority and the PFI contractor and between the PFI contractor and its subcontractors in order to cover HRA claims. It will therefore be important to ensure that all parties to a PFI transaction have identified potential HRA risks so that appropriate measures can be taken to ensure that their interests are protected.

Planning and environmental protection
No express environmental rights have been established under the European Convention of Human Rights, so there is no right to an environment of minimum standard. However, the European Court of Human Rights has accepted that the enjoyment of a certain quality of environment is part of enjoying the right to a private and family life (Article 8) and the right to peaceful enjoyment of one's possessions (Article 1 of the First Protocol).

The Human Rights Act enables third parties to rely on the Convention to complain to the local planning authority or the Environment Agency that any form of environmental nuisance caused by an existing neighbouring development is an interference with their rights under Article 8 and/or Article 1 of the First Protocol. It will then be up to the neighbouring property owner or the local planning authority to justify the infringement.

The authority's failure to serve an abatement notice (or an enforcement notice if the use is unlawful or planning conditions are being breached) on evidence of breach of an individual's Convention rights will be vulnerable to attack under the Act.

With new developments, the Act will enable third parties to put greater pressure on local authorities to ensure that the environmental effects of the development have been fully explored and to put pressure on the secretary of state to call in environmentally sensitive developments.

However, under Article 8 and Article 1 of the First Protoco, rights are qualified. Interference with a person's right to peaceful enjoyment of the home or possessions is only a violation of that right if the interference is not justified and proportionate to its aims and objectives. Interference arising from large and contentious schemes (particularly with a political dimension) should be justifiable as it could be argued that they are necessary for the economic well-being of the country or the preservation of the environment, in the interests of the community. For example, the European Courts have held that the noise nuisance created by Heathrow airport is both justified and proportionate.

Another key area that is affected by the Act is the considerable powers of local planning authorities and environmental protection authorities to obtain information. Over-zealous use of these investigatory and enforcement powers, including powers of entry and inspection, can now be open to challenge, either because the replies lead to self-incrimination, a breach of Article 6(1) (the right to a fair hearing) or because there is an interference with the right to peaceful enjoyment of property.

Conclusion
Clearly we will not know the full implications of the HRA for the facilities management industry for some time, but it is necessary to ensure that managers with responsibility for some of the areas we have discussed here have the impact of the HRA in mind when dealing with strategic, contractual and policy decisions on a day-to-day basis.

The HRA is not perhaps the revolution that some commentators implied it might be but it is another layer of complexity for the facilities industry that cannot be ignored.