Summary of the Opinion of Mr Timothy Dutton QC

Summary of the Opinion of Mr Timothy Dutton QC (10/11/2003)

At its meeting on 25 September 2003, the Board considered the legal advice of Timothy Dutton QC which it had received about its powers and duties. The Board has asked for advice in relation to issues raised by one of its members, Ian Salisbury. The Board took into account a range of material including Mr Salisbury’s papers; the Opinion of Timothy Dutton QC; a paper issued from the RIBA; and representations which had been made to the Registrar.

Having considered that material, and in particular having regard to the Architects Act 1997 for which the Board is responsible, the Board decided that it had acted, and was continuing to act, in accordance with the powers and responsibilities given to it under the Act. In particular the Board decided that it had the power: to include Standard 8 in the Code of Conduct; to issue guidelines as to what might be considered adequate professional indemnity insurance under Standard 8; to require an architect to confirm that he or she has professional indemnity insurance meeting the guidelines; to include Standard 10.1 of the Code of Conduct; to prescribe qualifications under Section 4(1)(a) of the Architects Act 1997 ("the Act") in accordance with the Board’s General Rules and the Procedures for Validation 2000; to set conditions relating to the prescription of a qualification and to admit a candidate to the Register provided that in the opinion of a panel of assessors that candidate meets the Board’s criteria.

The Board also decided that it would publish a summary of Mr Dutton's Opinion and conclusions. In doing so the Board does not waive the privileged status of the Opinion itself which on advice remains confidential.

Mr Dutton dealt with the following specific questions:

A. Has the Board the power to include Standard 8 in the Code of Conduct (the Standard requiring that architects carry Professional Indemnity Insurance (“PII”))?

B. Has the Board the power to issue Guidelines as to what might be considered to be adequate insurance under Standard 8?

C. Has the Board the power to require an architect to confirm that he or she has PII that meets the Guidelines?

D. Has the Board the power to include Standard 10.1 in the Code of Conduct (the “whistleblower provision”)?

E. Has the Board the power to prescribe a qualification under section 4(1)(a) having first followed the procedures set out in the document 2000 Procedures for Validation?

F. Has the Board the power to make prescription of a qualification subject to conditions such as those set out in the 2000 Procedures for Validation?

G. Has the Board the power to decide that the Registrar may admit an applicant to the Register provided that in the opinion of a panel of assessors the applicant meets the Board’s criteria?

H. If the answer to (E), (F) or (G) is in the negative, should the Registrar now remove from the Register all those holding qualifications that were not lawfully prescribed or who were not lawfully assessed?

I. If the answer to any of the above is in the negative (apart from G), have any members of the Board acted improperly in making decisions based on any incorrect understanding of the law and are they liable in law to any person adversely affected by their activities?

Leading Counsel’s response to questions A-F was an unqualified “yes”. In answer to question G the practice and principle of assessment applied by the Board was endorsed but a change to the wording of the Board’s Rules was recommended by way of clarification. This change is in hand. The answer to questions H and I was that the questions did not arise.

Mr Dutton's reasons and conclusions were in summary as follows:

The Board as "Regulator"

It has been suggested that the Board is not a "regulator" of the architects’ profession. Although nothing turns on the nomenclature, this is wrong. In those areas in which Parliament has imposed duties on or provided powers to the Board, it is undoubtedly a regulator as the word is commonly used by the courts, and the Board has certain statutory duties with which it is bound to comply in public law as a statutory regulator of a profession. The precise generic description that any individual chooses to give to the collection of statutory duties imposed upon, and the powers available to, the Board under the 1997 Act is in any event irrelevant for the purposes of the questions asked, for they largely involve issues of statutory interpretation which require the legislation to be construed and not given particular epithets.

Professional Indemnity Insurance – The Code of Conduct

The Board is required to issue a Code laying down standards of professional conduct and practice expected of registered persons and to keep the Code under review varying its provisions whenever it considers it appropriate to do so. The Board has the responsibility of deciding after consultation what the Code should say. There is no limit in Section 13 of the Act on what matters should be provided for in the Code beyond the primary wide statutory requirement contained within Section 13(1) that the Code must "lay down standards of professional conduct and practice expected of registered persons". The Board may not include matters which are not issues of an architect’s conduct or practice at all nor may it make irrational decisions as to the content of the Code, but subject to these limitations the Board has a discretion as to what to include within the Code.

No sustainable argument of principle against the inclusion of professional indemnity insurance provisions in the Code arises unless:

(1) professional indemnity insurance is not a matter of architects professional conduct or practice; or

(2) the inclusion of such provisions would be irrational; or

(3) the Board failed to consult.

The maintenance of professional indemnity insurance in relation to a client's right to recover loss for an architect's negligent error relates to both conduct and practice. There is a public interest in the maintenance of high standards, the prevention of harm or irrecoverable loss to the public by carelessness, and the maintenance of trust in and the good repute of the profession in the minds of the public. If confirmation were needed that a requirement to hold professional indemnity insurance relates to a standard of professional conduct or practice, it is readily available from the practice in other professions.

Notwithstanding the clarity of the legislation it has been suggested that the position is altered by speeches made in Parliament prior to the passing of the Architects Act. Some dispute exists over the nature and meaning of various statements made during Parliamentary debates but the Board has not sought to resolve these because they are irrelevant to the Board’s powers and responsibilities under the Act which are clear. Where legislation requires the Board to make decisions it must make them independently; the Board is not bound by the possible views of Members of Parliament or even government spokesmen. For the purposes of the Opinion only Leading Counsel was prepared to assume that a Government Minister had given an indication that the Government did not intend the Board to be laying down insurance requirements in the Code, but even so that did not prevent the Board from including insurance requirements in the Code.

A court may refer to parliamentary material in order to construe an Act which is unclear, obscure and ambiguous. Section 13(1) of the Act is clear and unambiguous and gives the Board a duty to issue a Code of Conduct. The fact that the section does not say what should be in the Code does not make the section unclear. It has been suggested that the House of Lords decision in Pepper v Hart [1993] AC 593 requires parliamentary material to be considered in conjunction with the Act so as to modify or constrain the Board's powers. This is not correct. In Pepper v Hart the House of Lords set out three conditions which must all be satisfied before a court would consider parliamentary material to be relevant. The first of these conditions, namely that the legislation is ambiguous, obscure or leads to absurdity, is not satisfied in the case of Section 13(1) of the Act. The argument that a Code of Conduct which requires registered architects to carry insurance is an absurd result is self evidently incorrect.

Professional Indemnity Insurance – The Guidelines

Standard 8 of the Code of Conduct requires architects to maintain adequate insurance. The Board is entitled to issue guidelines expanding upon what is adequate and might well be expected to do so. Architects and members of the public might not be properly informed if the Board was silent as to the meaning of adequacy. No principle of law has been suggested which prevents the Board from issuing guidelines.

Professional Indemnity Insurance - Monitoring

Given the Board’s responsibility for the maintenance of standards through the Code and the prosecution of the statutory offences of unacceptable conduct and serious incompetence, the Board is entitled to monitor compliance with the insurance requirements of the Code. This requirement goes to the conduct of the architect vis-à-vis the Board which is the body given the responsibilities for conduct and practice to which references have already been made.

Code of Conduct – “Whistleblowers”

Standard 10.1 of the Code requires that architects should report to the Registrar any serious breach of the Code which may come to their notice. This duty does not apply in various circumstances such as where it would conflict with any restrictions imposed by law or the courts. This is a duty which clearly may be described as an issue of conduct, and allowance has been made for circumstances, such as a duty of confidence which might make it difficult for a report to be made. It is a duty commonly imposed by other professions. The Board, having considered the matter carefully, concluded that it was a duty that should be included in the Code. This the Board was entitled to do.

Prescription and Validation

The Registrar is required to register an applicant who holds such qualifications and has gained such practical experience as may be prescribed. A qualification is prescribed by publication in the Board’s Rules. It would be absurd to suggest that the Board’s decision to prescribe a qualification has to be made in isolation from any consideration of the course of study or the quality of the examination leading to that qualification. The Board publishes criteria against which the course leading to the qualification, and hence the qualification itself, are to be judged. The Board also publishes procedures to ensure that it receives relevant information including information relating to examinations and gives a full opportunity for consultation and representations. The use of the term “validation” for this process does not mean that the Board has widened its functions or misunderstood its responsibility to prescribe qualifications. The Board must comply with its duty to consult prior to deciding to grant prescription but it must make the required decision itself. Institutions offering qualifications have a right to know the conditions or criteria which must be satisfied for their qualifications to be prescribed and that such conditions and criteria will be applied fairly. It would be wrong to suggest that the description of the procedures as "Procedures for Validation" rather than procedures for prescription means that the Board has exceeded its powers by publishing them or acting on them in the course of arriving at its decisions to prescribe.

Prescription and Conditions

A qualification is at any given time either prescribed or not prescribed. In some cases, however, the Board will prescribe a qualification on the basis that the decision will be reconsidered sooner than would normally be the case. When this happens the Board will indicate the nature of its concerns arising from the information before it. Schools of architecture are encouraged to address these concerns before prescription is reconsidered by the Board. Provided the Board has good reason for the shorter period and procedures are fair, the Board is entitled to vary the periods of prescription. The Board would not be entitled to prescribe a qualification in its rules by creating some lesser or qualified new category of prescription, but it has not been doing this.

Assessment

If the Registrar is satisfied that an applicant who does not hold prescribed qualifications is of a standard equivalent to a person who does, then that applicant is entitled to be registered. The Board determines the standard to be met by applicants which is in the opinion of the Board equivalent to the prescribed qualifications. A panel of expert assessors interviews applicants and reports whether or not the standard has been met. It would be wrong to suggest that a decision could be made as to the equivalence of an applicant’s standard of competence without any consideration of the applicant’s competence.

A rule change is suggested solely to prevent an argument that the assessment which is carried out is an examination and (if so) that the approval of the assessment procedures given by the Board is not sufficiently clear to include assessment within the provision within the Board’s Rules permitting “any other examination which the Board may approve for this purpose”.

Board members themselves need only be involved in the assessment of candidates if the Registrar is not satisfied from the information before him that a candidate is entitled to be registered. The information will include the report of the assessment panel. The Board itself is required to set the general standard of competence to be demonstrated by applicants as being the equivalent to that of a candidate holding the prescribed qualifications.

There can be no objection in principle to the process of assessment by the Board, or through procedures arranged by the Board, which is a fair means of ensuring that the appropriate standards have been met.

7 November 2003