In statutory adjudication under the Construction Act, the cases of Austin Hall Building Ltd vs Buckland Securities Ltd and Discain Project Services Ltd vs Opecprime Ltd investigated the application of the European Convention on Human Rights' article 6, which concerns the right to a fair trial. Although it was decided that article 6 either did not apply or had not been breached, confirmation was given that the rules of natural justice applied to adjudication.
The Austin Hall case highlights another difficulty when mounting a challenge – UK legislation itself gives rise to breaches of the convention. The Human Rights Act 1998 (section 6) makes it clear that it is not unlawful for a public authority to act contrarily to European human rights law if "as the result of one or more provisions of primary legislation, the authority could not have acted differently". As UK courts apply statutes, they are bound to follow this provision. Further, primary legislation is required to overcome any such non-compliance.
In the planning field, the European convention has been used as a way of challenging decisions made by the secretary of state on planning applications under the Town and Country Planning Act 1990. The House of Lords recently adjudicated on this in Regina vs Secretary of State for the Environment, Transport and the Regions ex parte Holding and Barnes plc and Others (10 May 2001). The court decided that the various acts of parliament pursuant to which the secretary of state laid down policy and took decisions on planning applications were not incompatible with article 6.
It remains to be considered to what extent local planning authorities will run foul of article 8, which gives everybody "the right to respect for his private and family life [and] his home".
Article 8 goes on to say "there shall be no interference by a public authority with the exercise of this right", although there are certain exceptions. It might well be thought that the grant of planning permission by a local authority that impinges too dramatically on the use and enjoyment of an individual's property involves a breach of this article.
One wonders if it is only the downtrodden whose interests are being preserved by human rights law
The European convention has started to play a prominent part in the conduct of court proceedings. In a recent case, Circuit System Ltd and Basten vs Zuken-Redac (UK) Ltd, the Court of Appeal considered the extent to which the court's right to strike out an action was subject to the fair trial requirements of article 6. The writ in that case had been issued in 1988, and for various reasons there had been earlier trips to the Court of Appeal and the House of Lords. Eventually, the claimant had its proceedings struck out and dismissed because, despite a variety of opportunities, it had failed to the satisfaction of the first instance judge to plead its case in writing in a satisfactory form.
Although the Civil Procedure Rules undoubtedly permit the court to take such an action, a complaint was made that article 6 of the convention had been ignored: "In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
By striking out the action prematurely, it was argued, the claimant had been deprived of this basic right. The Court of Appeal said there was no breach. In judging fairness, the court had to hold a balance between both parties. It was unfair on the defendant that the case should go on indefinitely.
The basic object of human rights legislation is to protect what are considered to be fundamental freedoms of both individuals and corporate bodies. Although it is vital that those basic liberties are not challenged by any public authority – be it government, court, local authority or otherwise – one wonders whether it is only the downtrodden whose interests are being preserved.
Postscript
Robert Akenhead QC is a barrister specialising in construction law at Atkin Chambers and joint editor of Building Law Reports.
