This month, the much-heralded Human Rights Act comes into force, incorporating the European convention on human rights into UK law. There has been a lot of speculation about whether the Act will give rise to a flood of legal claims against public authorities as it becomes easier to enforce European rights in the British courts. But is this the dawn of a new standard of accountability under the law, or are the concerns about the demands being placed on professional bodies exaggerated?
The European convention outlines basic rights, including the right to private life, to freedom of expression and to a fair hearing. The legislation has implications for professional bodies, for companies and practitioners working in the public sector, and for disciplinary and peer review forums.
Appeals against authority The convention aims to protect the rights of individuals against the decision-making power of authorities and to provide an avenue of appeal. Until now, appeals against the decisions of state bodies were made through judicial review.An individual or organisation could ask the courts for judicial review of a decision by a state authority on the grounds of prejudice or the belief that a body overstepped its powers. Where the convention differs is both in setting out standards of conduct against which the decisions by state authorities can be measured, and also in extending these standards to any organisation with a 'public role'. This is a much wider definition than state authority and includes the ARB's function as a disciplinary body.
The most relevant change is the grounds for court appeal against the decisions of the ARB (and by most other bodies charged with regulating and disciplining members). Article six of the convention stipulates that, 'everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal'. The ARB has powers, under the Architects Act (1997), to investigate professional misconduct and serious professional incompetence. Like the General Medical Council, the Financial Services Authority, and the Office for the Supervision of Solicitors, the ARB will have to ensure that its disciplinary procedures do not fall short of this standard, or in some other way infringe architects' rights under the convention. Judges will be able to overturn ARB decisions and to award damages where appropriate.
Some believe that professional organisations'disciplinary forums will grind to a halt under the weight of claims and appeals, others assert that the Act represents nothing more than a technical improvement to enable the pursuit of existing rights. But, while the Human Rights Act is predominantly a technical change, it does correspond to a sea change in how the law impinges upon our personal and professional conduct.
The blame culture One real reason for concern about the impact of the Human Rights Act is the litigious context for its debut. In recent years, as the costs of court fees, lengthy appeals and, in some cases, compensation have become more apparent. British people are increasingly willing to resort to law to challenge decisions or to allocate blame.
The past decade has seen an unprecedented rise in complaints about professional services and appeals against employer and local authority decisions.
The ARB receives over 800 complaints each year relating to architects, and investigates 10 per cent in depth.Around 1 per cent lead to a full hearing before the Professional Conduct Committee. After an overhaul, the ARB's new system will investigate and rule on complaints more quickly through early referral to a smaller investigation committee.The changes will come into full effect alongside the Act this autumn and the ARB should have little trouble conforming to the convention's requirements.
Amid all the current speculation, it is important to remember that the political demand for professional accountability long precedes the HRA.The pressures on organisations from an upward trend in complaints and appeals began in the early 1990s, as part of a much broader decline of public confidence in professionals and the ability of professional bodies to police themselves. The 1990s have seen many new rights, procedures and safeguards in an attempt to recover this lost public confidence. The European convention on human rights is just a further articulation of these wider social patterns.
Tracey Brown is senior analyst at the Risk Analysis Unit, Regester Larkin. Tel 020 7831 3839