Limited Statutory Remit

(Until 29 July 2010, when it was revised, this article was entitled "Outside the Statutory Remit")

Until it was revised in 2009 Standard 8 of the Code of Conduct published by the Architects Registration Board had from 2002 stated that registered persons should not undertake professional work without adequate and appropriate professional indemnity insurance cover.  Now it merely states that such insurance is "expected".  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".  

But when parliament created the legislation even such an anodyne Standard as there now is was beyond its contemplation.  On 5 June 1996 Mr Elfyn Llwyd MP secured time to debate professional 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."

In deciding to revise the Code as it has, it appears that the Board may have taken account of leading counsel's advice (see paragraph 45 of the opinion of David Blunt QC); for he had said that a complaint by a client who had suffered no actual prejudice (including, perhaps, a loss) against a registered person who did not have what was the requisite insurance cover could not properly be taken to constitute unacceptable professional conduct.  Some additional factor, which he called the "X-factor" was required to negate the effect of section 13(4)(a) of the Act which provides that a breach of the Code cannot "be taken of itself to constitute unacceptable professional conduct".

In July 2010, the Board retreated further by "suspending" the asserted requirement to provide evidence of professional indemnity insurance.  The apparently ostensible reason for this was expediency, bearing in mind what was perceived as the ineffectiveness of the mandatory requirement for an account of compliance.  However, it is suggested that a correlation between this change of policy and the decision of the Board in April 2010 to withdraw a charge against an architect who had consistently refused to comply with the Board's policy on the grounds that the Board's activity was unlawful cannot entirely be discounted.

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