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.