Where does the Human Rights Act stand on arbitration?
There is no getting away from it: the Human Rights Act (HRA) has profound implications for us all. The Act is intended to make rights we have all enjoyed under the European Convention for Human Rights enforceable in the UK courts, rather than us having to make an expensive trip to the European Court of Human Rights in Strasbourg.
The HRA is doing no more than spelling out for us the nature and effect of a whole swathe of rights that we have had since 1953, but did not generally know about. The government White Paper on the subject enjoyed the catchy title of 'Bringing Rights Home' and conjures up cosy images of our esteemed Lord Chancellor struggling homeward, bent double under the weight of a juicy side of bacon.
The legislation was not without its opponents, particularly those concerned about the threat to parliamentary sovereignty and the growing supremacy of Europe.
It should come as no surprise, therefore, that it was opposed by the Conservative front bench. To assuage some of these fears, the legislation adopted a measure based on New Zealand's experience, which denies the courts power to strike down legislation that is inconsistent with the European Convention, but instead seeks to ensure that all legislation is interpreted in a way which is compatible with those rights guaranteed under the convention.
Introductory guides to the HRA, such as the study guide produced jointly by the Home Office and the Bar Council, contain broad explanations of the intention of the legislation: 'Most modern democracies accept that there are some basic rights and freedoms that are so important and so fundamental that everyone should enjoy them - just because they are a human being.'
So you might be forgiven for thinking that the HRA is about 'humans' and their 'fundamental freedoms'. But the Act applies just as much to legal personalities, such as firms and partnerships, and to their civil rights and obligations.
As this includes disputes that may involve one party paying money over to another, contrary to first impressions the HRA applies as much to companies arguing over money as it does to the unborn foetus fighting for its right to life.
One of the key provisions of the Act is that it is unlawful for a public authority to act in a way that is incompatible with convention rights. The term 'public authority' is not defined by the Act and if anyone were asked, they would say that it obviously meant government departments, local authorities and perhaps people with 'authority' paid for by the 'public', such as the police. But there is nothing the European Court of Human Rights likes to do more than widen the ambit of the convention and to attach obvious labels to unlikely candidates. The following are definitely public authorities: the courts; tribunals; and anyone who exercises functions of a public nature.
Other suggestions made during the drafting stage include: prisons; companies that were previously in the public sector, such as privatized utilities; and even the BBC. The main thrust of the legislation concerns those whose rights have been infringed by these 'public authorities'. But because the Act applies to the courts and other tribunals it will have far-reaching implications for the dispute resolution business.
Article 6 entitles everyone to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
These requirements, particularly for a hearing held in public within a reasonable time, ought to alert proponents of the private arbitration and speedy adjudication processes that they might be contravening somebody's fundamental freedoms somewhere along the line. Europe is no stranger to arbitration and various European cases have held that arbitration is essentially a consensual matter. Parties are able to waive their convention rights so long as they do so unequivocally. A voluntary reference to arbitration amounts to an agreement to contract out of the Convention and a waiver by the parties of their rights under Article 6.
Where arbitration is imposed upon the parties, for example by statute, the process should be Article 6-compliant. This raises the question: does the HRA apply to adjudication?