Only human

The Human Rights Act 1998 (the HRA) came into force on 2 October 2000. This Act gives effect to certain rights and freedoms contained in the European Convention of Human Rights (the Convention), to which the UK was already a signatory.

The Convention was ratified by the Government in 1951 and came into force on 3 September 1953. Until the HRA however, the Convention had not been enforceable in the UK, although it has been possible to bring claims against the country at the European Court of Human Rights.

From 2 October 2000, the rights contained in the Convention are now enforceable in the English courts.

The right and freedom that is most likely to be relevant to the construction industry is that of a fair trial. This right is contained in Article 6 of the Convention, which makes it unlawful for a public authority (including a court or tribunal) to act in a way which is incompatible with the rights contained in the Convention.

The substantive rights provided by Article 6 are:

• a fair hearing – a court or tribunal is "under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessments of whether they are relevant to its decision";
  
• equality – each party must be given an equal opportunity and forum within which to present its evidence and oppose the evidence presented against it;
  
• public hearing – all hearings are to be public except where the court or tribunal determines that in the interests of morals, public order or national security, the public should be excluded;
  
• time – any determinations of "civil rights" to which Article 6 applies must be heard within a "reasonable time";
  
• independence – all hearings are to be held before an independent and impartial tribunal established by law.

The HRA will therefore affect dispute resolutions in the construction industry, in particular, adjudication, arbitration and litigation.

Adjudication The immediate question is whether the courts will be able to declare that the adjudication process is incompatible with Article 6, as it can be argued that adjudication does not entitle both parties to a fair and public hearing.

In any adjudication process, the adjudicator is obliged:

• not to exceed their jurisdiction;
  
• to act impartially;
  
• to act in good faith;
  
• to observe the principles of natural justice;
  
• to avoid manifest unreasonableness;
  
• to reach a decision in accordance with the applicable law.

Clearly, adjudicators are already required to conform to the fair trial obligations contained in Article 6 of the Convention. Further, Article 6 only applies to decisions made by 'public authorities'; although this term is not specifically defined, it includes courts, tribunals and "any person whose functions are of a public nature".

It is debatable whether an adjudicator's functions can be said to be of a "public nature", given that the Housing Grants, Construction and Regeneration Act 1996 (HGCRA) only gives limited powers to decide on disputes arising under construction contracts. Further, the adjudicator's finding is only a temporary binding decision pending any arbitration or litigation.

It is therefore unlikely that any arguments that an adjudication is incompatible with Article 6 will succeed. However, there may be challenges to an adjudicator's decision on the grounds that the parties were denied natural justice given the tight timetable within which each party had to present its case.

The response to such an argument is that an adjudicator is required to act in accordance with the principles of natural justice in any event.

The HRA will affect dispute resolutions in the construction industry, in particular adjudication, arbitration and litigation

In the recent case of Discain Project Services –v- Opecprime Development Limited, the court chose not to enforce the adjudicator's decision because he had significantly breached the rules of natural justice. In this case the adjudicator had participated in secret conversations with the claimant, which meant that it appeared that there was a serious risk of bias.

The interests of the construction industry generally, in terms of having the decisions of adjudicators enforced, should prevail over the needs of any one individual company.

Therefore, the considerations underpinning the HGCRA, such as the need for early determination of disputes and the maintenance of cashflow, are likely to be argued to support the basic principles of adjudication as representing the interests of the construction industry as a whole.

Litigation
The Civil Procedure Rules have now been in force for 18 months. The overriding objective of these Rules is to deal with cases justly and as quickly as possible, and they already incorporate the provisions of the Human Rights Act.

However, the courts will have to exercise caution in striking out claims, ordering disclosure of confidential documents which may involve a breach of a third party's right to respect for private life, and ordering that the parties may only appoint a single expert.

Arbitration
With regards to arbitration, it is usually considered that since the parties have decided in favour of the rights provided by the Arbitration Act, the Human Rights Act will not apply. This is because the parties have entered into a contractual agreement to have the dispute resolved by arbitration.

The courts will not interfere with the contractual agreement. In any event, the rights provided by the Arbitration Act 1996 are similar to those provided by the HRA.

However, if one party is forced into an arbitration, for example when work is tendered pursuant to a standard arbitration clause, then the rights provided by the Human Rights Act may apply to the arbitration.

It remains to be seen whether the construction industry as a whole will be able to withstand the impact of the Human Rights Act.