BASED ON  R v Architects' Registration Tribunal, Ex parte Jaggar - [1945] 2 All ER 131

R v Architects' Registration Tribunal, Ex parte Jaggar

KING'S BENCH DIVISION  1, 2, 3 MAY 1945

LEWIS J; OLIVER AND BIRKETT JJ concurring with nothing to add

            Mr Jaggar [or Jagger], the applicant, was borough engineer and surveyor at Huddersfield. He applied to the Architects' Registration Council (ARCUK) to be registered as an architect under the Architects (Registration) Act, 1931, ss 6, 10 and the Architects Registration Act, 1938, ss 2, 4, and specified the works for which he had been responsible in the capacity of an architect. When the Admission Committee refused to register him he appealed to the Tribunal of Appeal. Dismissing the appeal, the tribunal had acted upon a test which had been laid down previously by them and which contained the following definitions: "An 'architect' is one who possesses, with due regard to aesthetic as well as practical considerations, adequate skill and knowledge to enable him ... to arrange for and supervise the erection of such buildings or other works calling for skill in design and planning ... 'Practising' ... means: Holding out for reward to act in a professional capacity in activities which form at least a material part of his business. A man is not practising who operates incidentally, occasionally, in an administrative capacity only, or in pursuit of a hobby."

On two of the three grounds for his application to the High Court for the decision of the tribunal to be quashed, which (according to the headnote of the All E.R. report) were:

· (i) that the tribunal adopted as the basis of their decision definitions of the terms "architect" and "practising" contrary to the Architects' Registration Act, 1938, since, instead of deciding whether the applicant, at the date of the passing of the Act, was or had been practising as an architect, the tribunal considered whether the applicant was a competent architect; and

· (ii) that the tribunal received evidence relating to the applicant's case and improperly declined to communicate the substance thereof to the applicant, or to give him an opportunity of rebutting any adverse statements contained therein,

the Court Held - (i) there being no definition of the word "architect" in the Architects' (Registration) Act, 1931, it was left to ARCUK to determine the proper degree of skill and the qualifications required for a person to be admitted as a registered architect. The ordinary meaning of the term "architect" connoted a certain amount of skill, and test laid down by the council, requiring "adequate skill and knowledge" was reasonable; and the tribunal had adopted a proper test for the decision on whether the applicant was practising as an architect within the meaning of the Act. (ii) it was improper for the tribunal to have given weight to documents the contents and source of which were not divulged to the applicant, and, the applicant was not given a real and effective opportunity of meeting the relevant allegations made against him, the motion to quash the decision of the tribunal must succeed.

EXTRACT from the judgment delivered by LEWIS J.

This matter arises under two Acts of Parliament which concern the registration of architects. By the Act of 1931, for the first time, as far as we are aware, it was enacted that a council of architects should be set up who should establish and maintain a register of what were to be known as "registered architects." That Act of Parliament also set up a body to be known as the admission committee, who should report to that council their opinion as to the qualifications for registration as an architect of any applicant. If, on consideration of the report from that committee, the council were satisfied that the applicant was a person who should be registered as an architect, the council forthwith should register him as such architect.

By sect 6 of that Act, it is provided:

'Subject to the provisions of this Act, a person shall, on application made to the council in the prescribed manner and on payment of the prescribed fee, be entitled to be registered under this Act, if the council are satisfied on a report of the admission committee (a) that he is an architect member of the Royal Academy or of the Royal Scottish Academy; or (b) that his application for registration was made within two years from the commencement of this Act and that at the commencement of this Act he was, or had been, practising as an architect in the United Kingdom; or (c) that he has passed any examination in architecture which is for the time being recognised by the council; or (d) that he possesses the prescribed qualifications.'

The fact that the Act of Parliament lays down certain matters on which the council, on reading the report of the admission committee, must be satisfied would seem to me to suggest that there are certain qualifications which it is necessary for a person to have under the 1931 Act before the council is bound to register him as an architect under that Act.

That matter is one, in my view, which becomes of importance when one considers the first of the grounds for the application before the court.

The 1931 Act was followed by the Architects' Registration Act, 1938. The 1938 Act among other things did away with the title of "registered" architect, which was a title which might be used under the 1931 Act, s 10, by anybody whom the council thought fit to register. But, which is much more important, it set up a tribunal to which anybody, whose application had been refused by the council, could go on appeal from the decision of the council, a decision which, as I have said, was made upon the report of the admission committee. A statutory tribunal was set up of persons who were not members of the council, and were appointed by various departments and persons, which was empowered to hear the complaint of an applicant who had been refused to be made a registered architect by the council. The material section for this purpose is sect 2 of the 1938 Act:

'Notwithstanding anything in the principal Act, a person shall, on application made to the council in the prescribed manner after the passing of this Act and before the first day of August, 1940, and on payment of the prescribed fee, be entitled to be registered under the principal Act, if he proves, to the satisfaction of the council, or, on an appeal under this section, to the satisfaction of the tribunal hearing the appeal, that at the date of the passing of this Act he was, or had been, practising as an architect in the United Kingdom or in some other part of His Majesty's Dominions.'

Subsect (3) of sect 2 is the section giving the constitution of the tribunal, and the tribunal is given power to make rules. The 1938 Act, s 4(2) enacts:

'A person shall not, for the purposes of the principal Act and this Act, be treated as not practising by reason only that he is in the employment of another person.'

Those, I think, are the only relevant sections of the Acts of Parliament which we have to consider for the purposes of this motion. I should mention they were entitled to make their own regulations under the 1931 Act. The 1938 Act, s 2(5) lays down:

'Three shall be a quorum at any meeting of the tribunal, and the tribunal shall have power to act notwithstanding any vacancy among the members thereof; and the procedure of the tribunal shall be such as it may determine.'

So, not only were they entitled under the 1931 Act to make their own regulations, but under the 1938 Act they were entitled to lay down their own procedure.

Mr Jagger applied to be registered as an architect, and he filed the necessary papers in accordance with what was demanded of him under the Act of Parliament and the rules made thereunder. He set out what he was and what his qualifications were and his professional address, and then he gave, as he had to do in accordance with the Act of Parliament, certain details, namely, that he was employed and served his articles as borough engineer and surveyor, and that he was then borough engineer and surveyor at Huddersfield. Among other things, in accordance with a request which it was laid down that the council could make, he was asked to give the names of two registered architects or other responsible persons to whom reference could be made. Then in this application there follow certain works or schemes for which he had been, as he alleged, responsible as architect.

The matter came before the admission committee, which is a committee which does not hear the party at all; but his credentials, if I may use that expression, are looked at. The admission committee, having no doubt got other information, then make up their minds and report to the council, and then, in accordance with the Act, if the council are not satisfied on the matters on which they have to be satisfied, on the report of the admission committee, they refused to register. In this case they refused to register Mr Jagger as an architect under the 1938 Act, whereupon, in accordance with the rules and what was laid down in the regulations, Mr Jagger proceeded to appeal to the tribunal set up under the 1938 Act. He appeared before that tribunal, being represented by counsel, and a solicitor appeared for the council, but apparently took little or no part in the proceedings. In due course, on 28 April 1944, a document signed by the chairman of that tribunal was sent to Mr Jagger, which is to this effect:

'That the tribunal, having considered this case, have dismissed the appeal.'

The tribunal, by so doing, upheld the decision of the council not to admit Mr Jagger as an architect. The first ground of the appeal, which I have already read, raises this question. This is the way in which counsel for the applicant puts it. The tribunal laid down for themselves certain tests as to what the words "practising as an architect" (which occur in the 1938 Act, s 2, and which is a question they have to decide) mean. At all material times, Mr Thorpe KC was the chairman, appointed by the Lord Chancellor, of this tribunal. In order to get conformity in the decisions, Mr Thorpe KC laid down, in consultation with the other members of the tribunal and the council, a definition of the words "practising architect." This test, as we understand it, was laid down on 26 November 1941, and has been applied ever since 1939 or 1940, when Mr Thorpe KC was appointed, till his death. This is the test on which the tribunal have acted when they have sat:

'An "architect" is one who possesses, with due regard to aesthetic as well as practical considerations, adequate skill and knowledge to enable him (i) to originate, (ii) to design and plan, (iii) to arrange for and supervise the erection of such buildings or other works calling for skill in design and planning as he might, in the course of his business, reasonably be asked to carry out or in respect of which he offers his services as a specialist. "Practising" in this context means: Holding out for reward to act in a professional capacity in activities which form at least a material part of his business. A man is not practising who operates incidentally, occasionally, in an administrative capacity only, or in pursuit of a hobby.'

In and around that definition or guide which the tribunal gave themselves, arises the first point taken by counsel for the applicant in this case. He says:

'We ask the court to quash this decision by writ of certiorari, because certiorari will lie in a case where a quasi-judicial tribunal, such as this, which has a statutory question to answer, namely, is this man practising as an architect, instead of answering that question, answers another wholly different question.'

That, counsel for the applicant says, is the whole vice of this decision. He says that what the tribunal decided in this case was, not whether Mr Jagger was practising as an architect, but whether he was practising as a competent architect. Counsel for the applicant says that the Act does not say they have to find out if he is practising as a competent architect. It only says they have to decide whether he is practising as an architect. There may be a great many people who are extremely incompetent architects, but, he says, the only question the tribunal has to decide is, is he practising as an architect? Counsel for the applicant lays stress on the words in the definition, where something is said about aesthetic considerations and the fact that anybody to be an architect, according to this definition, must be a person of "adequate skill and knowledge." That argument sounds, at first sight, to be extremely attractive. If the tribunal had decided, as counsel for the applicant asks us to say, that wrong question, not the question which was submitted to them, speaking for myself I have no doubt whatever, on the authorities and certainly one case--namely, Board of Education v Rice, this court could, if they were satisfied the tribunal had not answered the question which they were asked to answer but had answered something else, properly issue a writ of certiorari to quash their decision. But I venture to think the fallacy, if I may be permitted to say so, of the argument of counsel for the applicant is this. There is no definition of the word "architect" in these Acts of Parliament, or in any other Act of Parliament as far as I know--certainly in no Act of Parliament to which we have been referred. There are indications in the 1931 Act that before a person can be registered as an architect, he must have certain qualifications, but I do not lay too much stress upon that. There being no legal definition in the Act of Parliament of the word "architect," one has recourse to the ordinary meaning of the word "architect." Using one's knowledge, and looking at the dictionary definitions of the word "architect," it is perfectly clear to my mind that the word "architect" connotes a certain amount of skill. In Murray's New English Dictionary, which counsel for the respondents cited to us yesterday, the first meaning of "architect" is:

'A skilled professor of the work of building, whose business it is to prepare the plans of edifices, and exercise a general superintendence over the course of their erection.'

Therefore, one has the fact, if that definition of the word "architect" in Murray's New English Dictionary is right, the word connotes "A skilled professor." If one looks at Webster's International Dictionary, the meaning of "architect" is given as "A person skilled in the art of building." In my opinion, the word "architect" must convey to anybody some degree of skill. There being nothing in the Act of Parliament to guide the council as to the meaning of the word "architect," it seems to me that the legislature purposely--one can very well see the reason of it--left to the council of architects the task of deciding what the proper degree of skill, or what the proper qualification or qualifications were for a man who was entitled to be called a registered architect. There is no question that under this Act of Parliament the powers given to the council are powers which might, and do, affect very much a man's livelihood, but one can well see that qualification in the profession of architect is an important matter, and one which is highly valued by architects themselves. In my view, Parliament were saying that you have got to impose such qualifications as you think right. I am not for one moment suggesting that, if the council put some outrageous test which a person applying to be registered as an architect had to pass before he could be registered as an architect, it might not be said in this court that the tribunal, by setting up this ridiculous test, had not really considered the question they ought to have considered, namely, whether this particular person was practising as an architect. But, in my view, in view of the terms of the interpretation laid down by the profession themselves, it is impossible to say, as counsel for the applicant wants us to say, that the question that they were in fact deciding was whether this man was a competent architect. In my view, that was not the question. They were deciding the question: Was he practising as an architect within the meaning of the Act? As the Act says nothing as to what the test should be, as I have already said, the council are entitled to lay down as a tribunal their own procedure.

I am reminded by Oliver J, that the words used in the definition--I think I did read it--are "adequate skill," which to my mind is by no means putting a very high test of skill, but such skill as is adequate to qualify as an architect. In my view, therefore, this motion fails on the first ground.

....[The part of the judgment on the third ground of the application is here omitted]....

As the matter stands at present, I feel that this motion should succeed on this second ground which is set out in the notice; that the tribunal received evidence regarding the applicant's case and improperly declined to communicate the substance thereof to the applicant or to give him an opportunity of rebutting any adverse statement contained therein. As I have said, I think that ground for the motion succeeds.