And I suppose that, while you are busy building a winter edifice, delayed by four weeks because a client keeps changing their mind, you tend not to think about human rights, do you? In fact, my guess is you’d be pretty hard-pressed to figure out how something called the Human Rights Act would have the slightest effect on construction at all. And I wouldn’t blame you one bit if you had never heard of this recent act, nor criticise you if you knew nowt about it. Oh, but it is there, and it is ever so important. It is about everything we do, and it is about protecting little old you from the state; guarding us from the guards.
Let me fill you in. The European Convention for the Protection of Human Rights and Fundamental Freedoms is a treaty invented in 1950. The UK signed up to it in 1951. It has taken damn near 50 years to put the convention – the Human Rights Act 1998 – into our everyday law. The excuse for the delay was that some said most of the act was already part of our common or general law, and anyway you could always dash off to Strasbourg to have your grievance aired. Sounds simple; sounds incredible. But now in Scotland, Wales, Northern Ireland, and, since 10 January, England, you can raise a question in any court about your fundamental rights under the new act.
Yes, it may be true that some of the rights sound more suited to Rwanda or Kosovo or the past work of Mr Mandela, but I tell you this, there are important rights to be applied here at home. Allow me to list them:
- the right to life
- freedom from torture
- freedom from slavery
- freedom from arbitrary arrest and detention
- the right to a fair trial
- freedom from retrospective penalties
- the right to privacy and family life
- freedom of religion
- freedom of expression
- freedom of association
The Human Rights Act is about everything we do, and it is about protecting little old you from the state
- the right to marry and found a family
- freedom from discrimination
- restrictions on the political activity of aliens
- prohibition of abuse of rights
- limitation on use of restrictions on rights
- the right to peaceful enjoyment of property
- the right to education
- the right to free elections
- the abolition of the death penalty
- preservation of the death penalty in war time.
And now let me tell you what happened just the other day. It was my job to make a binding decision in a dispute between two construction companies. The barrister for one side explained that what his barrister opponent was suggesting was “unfair”. He said he was being ambushed with last-minute evidence. This fellow did not take me to article 6 of Human Rights Act, but he could have done, and soon it will be an popular place to point. Here it is clearly laid down that when civil rights are being determined (such as a building quarrel), everyone is entitled to a fair hearing. And let me tell you how this affects new adjudication. If the 28 days is too short for a fair hearing, then the time must be extended or else the outcome will be unlawful. Article 6 also says that such decisions are to be pronounced publicly, so out goes the secrecy surrounding adjudication and arbitration awards. Even the hearings are to be open to the press and public. And I say hurrah.
And look at article 8. At last it is clear that you have a right to personal privacy, in your private life, your home, your correspondence. Public authorities will not be able to pry into employees’ lives. Surveillance via listening devices, taps, even CCTV, may be in violation of privacy. There is already one case where a solicitor wanted to tell the court what his client had told him but the court wouldn’t listen because of article 8.
Postscript
Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or e-mail him on info@tonybingham.co.uk.
