Outside the statutory remit

Standard 8 of the Code of Conduct published by the Architects Registration Board states that registered persons should not undertake professional work without adequate and appropriate professional indemnity insurance cover.  As guidance rather than imposing an obligation, this wording is suited to the Code of Conduct.  For by s.13(4) of the Architects Act, a failure by a registered person to comply with the Code "shall not be taken of itself to constitute unacceptable professional conduct or serious professional incompetence".  

It appears that the effect of leading counsel's advice (see paragraph 45 of the opinion of David Blunt QC) is that a complaint by a client that a registered person did not have the requisite insurance cover could not properly be taken to constitute unacceptable professional conduct unless there was, in addition, some other factor such as a loss to the client.

The wording of paragraph 8.3 of the Code is therefore not apt. It states that an architect "must" maintain insurance at a prescribed level and provide the Board with evidence of that insurance.  Such mandatory requirements are alien to a code properly formulated as guidance under the Act and impose, in consequence, a regulatory interference that has no statutory justification.

This was clearly outside the contemplation of parliament when it created the legislation.  On 5 June 1996 Mr Elfyn Llwyd MP secured time to debate compulsory indemnity insurance.  The Minister referred to the Bill in preparation, saying:

"Current legislation will reform the structure of ARCUK and make minor changes to admission criteria.  However, the changes to the criteria remain firmly based on the ability of the individual to function as an architect, and do not extend any of the criteria to cover financial or insurance matters.  We believe this is as it should be. The reforms, which gained widespread support during public consultation, are based firmly on the idea that ARCUK [ARB] should be a minimalist body concentrating on the core functions of registration and discipline".

This was at the core of the reform.  Earlier, on 7 May 1996, the Minister had said:

"The reason for reforming ARCUK is that since it was established in 1931, it has grown large and cumbersome and it has taken on functions that are not strictly concerned with registration."

The board has been repeatedly questioned on this interference.  At first confident, the board's solicitor was finally reduced to relying on a novel legal precept when he advised the board in February 2004 that it may rely on "extra statutory powers", ignoring the maxim for any public authority which is that "what is not permitted is prohibited".

The board requires practising architects to maintain professional indemnity insurance at prescribed minimum levels.  These levels are published in a document misleadingly described as "Guidance".  Legal counsel's two-hour advice on the lawfulness of setting such levels, heard by appointed past Board Member Alan Crane and reported to the Board at its Meeting of 23 May 2002, was that the "Guidance" had been introduced arbitrarily and without evidence of any need for cover; and that without such evidence, the board's policy was open to challenge. 

The requirement of providing evidence of insurance will be dealt with under Discipline.

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