AARUK

About  Architects  Registration

in the United Kingdom

Notes
and Articles: ELSY (Long-Scrolling) version as at 1
June 2009

...at what
point does yesterday's solution become the problem of today or tomorrow...?

-From:
Comments on the Government’s draft amendments to the Act : why now?
(draft amendments published in August 2007 for public consultation) [7ma ArcAct 7s4]

_______________________________________________________________________________________

Try search
words such as:

Ÿ
acq - arb - arcuk -  bank - consumer -  educa - exam - executant

Ÿ
highton -  impec -  intol - qualif - regime - regul -  riba

Ÿ
appen - dix - supple

Ÿ
omni - verdi - contenti .

[skip
Introduction] [go to Statement] [back to AARUK]

For Articles 1 to 12 of
the AARUK handlist re-presented as a narrative (19c. to June 2008) see the
supplement: "What was done
and what was meant".

ABOUT ELSY: This comprises notes and articles of the AARUK
website transposed to a single long-scrolling page arranged sequentially
according to a table of contents, and sub-tables. The set of tables is included
(some in the supplement at the end).

The single scrolling "page" extends over more than
90 ordinary pages printable to A4 paper (as can be seen using Print Preview
with the html version). The name "ELSY" is used  to denote
"Long-Scrolling"
("LS", el-es). This version has been made available by one of
the AARUK contributors (subject to the copyright notice on the AARUK Home Page). With few
exceptions, this version omits the numerous internal and external links which
are a feature of the AARUK website, and for those recourse should be had there.
Instead
ELSY is designed for words, names and dates to be found on screen by operating
the “find” function in the usual way.

~~

#end of page 1#

Introduction

The organizing principle for this version has been to bring
notes and articles which are part of the website into a single searchable
document, with certain signifiers which are useful whether scrolling over long
or short distances or operating the keyboard Find function; and to allow for
additions.

A series of tables is used to give the arrangement of
sections and articles a coherent structure. The prime and originating one is Table I - HOME PAGE LIST; the others are expansions,
derivatives or combinations, namely:

Ÿ
THE (ELSY) TABLE on pages 3 and 4
hereunder (expansion of
Home Page List, Table I);

Ÿ
Table I A:    Expanded
items of Home Page list;

Ÿ
Table  II:     Titles
from AARUK Main Page contents lists;

Ÿ
Table III:     Titles from  AARUK Synopsis;

Ÿ
Table IVA1:Titles
from Case Study 1, PCC;

Ÿ
Sub-table: Expansion of 74s1, listing contents of 4A1

Ÿ
Sub-table: Expansion of 74s2, listing contents of 4A2 .

The main body includes excerpts from some longer articles which
appear in full in an appendix.

As at 1 June:

Ÿ
The main body of the document ends on
page 44

Ÿ
The appendix begins on page 45 and ends
on page 85

Ÿ
A supplement which includes some of the
tables begins after the appendix.

SEARCH CODE TAGS: The sequentially numbered search codes in
the Table hereunder are reproduced as labels (tags) at the top of each of the
AARUK notes and articles which have been transcribed herein. Each item is given
a unique code identifier. These codes and other words, names and dates can be
found on screen by operating the “find” function in the usual way.

Try search words such as:  arb , arcuk ,  bank , consumer ,  educa , exam , executant , highton ,
impec , qualif , regime , regul ,
riba ; appen , dix , supple .

TO PRINT part(s) only of the contents herein shown on screen
operate Print Preview and Print functions in the usual way.

Printed
versions: for authenticity compare with text on AARUK website.

~~

#end of page 2#

[Link to AARUK]

T H E   (ELSY)  T A B L E

Listing               Titles
from AARUK Main Page contents lists (Table
II)

code                             Titles
from  AARUK Synopsis (Table III)

Titles
from TABLE IV A 1 (Case Study
1, PCC)

1st PANEL: PARTS I and II of the Act

1   ma Home   ARCHITECTS ACT

2   ma ArcAct  A useful 21st-century function?

3   ma ArcAct              3s1      ze: Analysis with
some passing remarks...  (14 Dec 2005)

3   ma ArcAct              3s3      Ambition,
Rationalisation...Solution? (15 Dec 2005)

5   ma ArcAct  Another regime? s.17 Building Act 1984 (30 March 2006)

6   ma ArcAct  The option of dissolution: IBRC precedent of March 2001

7   ma ArcAct  Incorporating the requirements of 2005/36/EC: Transposition (6 June 08, 27 Sept 07)

7   ma ArcAct              7s4      ze: "...Why
now?": comments on consultation draft (25 Sept 2007)

8   ma ArcAct  The right to removal of a name from the
Register

8   ma ArcAct              8s1      The right to have
name removed from Register thwarted (23 April 09)

8   ma ArcAct              8s3      Retention of name
in Register (16 May
2009)

11  ma Home  ARCHITECTS
REGISTRATION BOARD [ARB]

12  ma ArcRB ze:
Composition of the Board [ARB]. Handbook for Board members

15  ma ArcRB The
"wider remit" (24
Feb 2006)

17  ma ArcRB Status
of the Registrar (17
March 2006) / (6 Feb 2009)

21 ma Home   REGISTRATION

22 ma Regas  Cost of registration

23 ma Regas  Amendment of June 2008 to the Act of
1997: An early consequence

23 ma Regas  23s1    Amndt
of Jun08 to the Act of 1997

23 ma Regas  23s2    AARUK
appraisal of Amndt of Jun08 to the Act of 1997

24 ma Regas  Parliamentary replies: cost of retention (Oct, Nov 2008)

25 ma Regas  Case Study 3 (EU) Part 2: Conflicts of
interest: s.4(2A) (10
Feb 2009); SI 2008 No. 1331

25 ma Regas  25s1    Explanatory
paper of 21 April 2009 concerning the amendment of Jun08

25ma Regas   25s2    Case Study 3 (EU) Pt 3: Enforceability of
Architects Act in doubt (22
April 09)

31  ma Home  REGISTRATION-a
education

32  ma Reged Unequal
standard across Europe

33  ma Reged Duty
to consult: prescribing qualifications

34  ma Reged The
ARB's own examinations: circumvention

35  ma Reged             35s1    ze: Architectural education
in UK,
19c.-20c. (June 2007)

36  ma Reged  Case Study 3 Pt 1: Does the Act comply
with EU requirements? (Nov
2008)

36  ma Reged             36s1    zn: Architects Act 1997 as
amended from June 2008, unofficial version

37  ma Reged  Course validation or prescription of
qualifications? (26 May
2009)

37  ma Reged             37s1    ze: Letter to ARB 9 May
2009 re: Consultation 2009/01

41  ma Home  REGISTRATION-b
competence to practise

42  ma Regmp When the ARB may take CPD into
account

42  ma Regmp            42s1    Note on Position of persons
already on the Register

42  ma Regmp            42s2    ze: Note on Proposed
amendment to Rule 20

#end of page 3#

[Link to AARUK]

T H E
(ELSY)  T A B L E

Listing               Titles
from AARUK Main Page contents lists Table
II)

code                             Titles
from  AARUK Synopsis (Table III)

Titles
from TABLE IV A 1 (Case Study
1, PCC)

2nd PANEL: PARTS III, IV and V of
the Act

51  ma Home  PROFESSIONAL
STANDARDS-a the code etc

52  ma Pfsacd
"Serious": sections 13 and 14 of the Architects Act 1997

53  ma Pfsacd
The 2009 variations to the ARB Code (section 13)

54  ma Pfsacd Code revision-plain English? (28 April 2009)

54  ma Pfsacd                        54s1    The purpose of a code under
the Architects Act, s.13

61  ma Home  PROFESSIONAL
STANDARDS-b PII

62  ma Pfsbpii Outside the statutory remit

62  ma Pfsbpii             62s3    ze: Opinion of David Blunt QC
(19 Sept 2007)

71  ma Home  PROFESSIONAL
STANDARDS--c discipline

72  ma Pfscdp            Judicial
interpretation relating to Part III of the Act (2 April 2007)

72  ma Pfscdp            72s5    High Court holds
"serious" in Part III of the Act means SERIOUS

73  ma Pfscdp  Discipline and questionable PCC
decisions (January 2006)

74  ma Pfscdp  Case Study 1  (PCC) (January 2006)

74  ma Pfscdp            74s1    [4A1] Explanatory
introduction: Disciplinary proceedings 10 Jan 2006

74  ma Pfscdp            74s1    [4A2] An architect's
eloquence

75  ma Pfscdp  Case Study 2 (PCC): 2007

76  ma Pfscdp  Case Study 2 (PCC): 2008, 2009

77  ma Pfscdp              Practitioners' Registration Service:
Further amendment? (19
Aug 2007)

77  ma Pfscdp            77s2    ze: Part III of the
Architects Act and jactitation of power (19 Aug 07)

81  ma Home  USE
OF TITLE

82  ma Usot    The
statutory restriction

83  ma Usot    Use
of title by companies

E N D
O F   T A B L E

ze:
signifies where EXCERPTS are used, and these are shown in bold both in
the main body hereof and where the full article is reproduced in the APPENDIX.
zn: signifies not included; zx: external link.

In this
version hard page breaks occur at the end of each main title section,
and the beginning of each main title section is signified by its serial number
thus:  o>,  oo>, 1> ,  11>,  21>, 31>… 81>.

“  ~~   “ is used to signify the end
of an item, as an aid when scrolling on screen.

~~

#end of page 4#

[Link to AARUK]

o> HOME PAGE
PANELS

FROM
TABLE I A [EXPANDED items of HOME PAGE LIST [Table I]

oo ma Home      HOME

o11 ma Home    zx:
[INKS TO OTHER WEBSITES-a chartered bodies (RIBA and others)

o12 ma Home    zx:
LINKS TO OTHER WEBSITES, and SCANNED-b legislation    [see Table V]

o13 ma Home    zx:
LINKS TO OTHER WEBSITES-c historical notes

o14 ma Home    MAIN
PANEL

o14 ma Home    ou         MAIN
PANEL, upper main and left [ou ma Home]

ou  ma Home     ous1     ze: HANDLIST "Architect as a working
title…” html [=o21 ma
Home]

ou  ma Home     ous3     On official statements inconsistent with the
legislation html [=o23 ma Home]

o14 ma Home    14s1     zx: RIBA paper Status
of the ARB (May 2003)

o14 ma Home    14s2     ze: RIBA paper Status
of the ARB (May 2003) (version c.p7)

o14 ma Home    14s3     zx: Michael Highton‘s report adopted by RIBA Council in 2004

o14 ma Home    14s4     zn: Michael Highton‘s report adopted by RIBA Council in 2004, cltd
version

o14 ma Home    14s5     zx: Wikipedia articles
on Architects Registration in the UK

o14 ma Home    14s6     zx: unofficial version
of Architects Act, as amended Jun08 at RIBApedia

o14 ma Home    14s7     zn: unofficial version
of Architects Act, as amended Jun08 saved version

o15 ma Home    o15s1   ze: Point of view on statutory registration (6 Nov2006) [=
ols11]

o16 ma Home    LATEST from 2006 and 2007
including CASE STUDIES 1 AND 2 (PCC)

ol ma Home       HOME
PAGE, left, lower, latest

ol ma Home              ols1         Questionable
PCC decisions: Case Study 1 (PCC} ( 19/21 January 2006 )

ol ma Home              ols2         2
Questions ( 20 February 2006 )

ol ma Home              ols3         The
"Wider Remit" ( 24 February 2006 )

ol ma Home              ols4
Election
Results ( 8 March 2006)

ol ma Home              ols5         A
new Registrar ( 17 March 2006)

ol ma Home              ols6         Issues,
explanations and suggestions ( 27 March 2006)

ol ma Home              ols7         The
duty to consult ( 24 March 2006)

ol ma Home              ols8         Another
regime? ( 30 March 2006)

ol ma Home              ols9         Rule
20 change ( 29 May 2006)

ol ma Home              ols10       The ARB's
examinations ( 27 June 2006)

ol ma Home            ols11       Point of
view on statutory registration (6 November 2006) [=o15 ma Home]

ol ma Home              ols12       PCC case
study 2 (28 March 2007)]

ol ma Home              ols13       Judicial
interpretation of Part III (2 April 2007)

ol ma Home              ols14       PCC case
study 2 Part 2 (9 May 2007)

ol ma Home              ols15       Wikipedia
(31 May 2007)

ol ma Home              ols16       Architectural
education in the UK
(2 June 2007)

ol ma Home              ols17       Jactitation
of power (22 August 2007)

ol ma Home              ols18       "Complete
defence" QC advises (19 September 2007)

ol ma Home              ols19       Judicial
nonsense (20 September 2007)

o17 ma Home    LATEST from 2008 and 2009
including CASE STUDIES 2 (PCC)] AND 3 (EU)

ol ma Home       HOME
PAGE, left, lower, latest

ol ma Home              ols20       202005/36/EC
amendments – comments (27 Sept 2007 - updated 6 June 2008)

ol ma Home              ols21       The June
2008 amendment of the Architects Act (20 June 2008)

ol ma Home              ols22       Questionable
PCC decisions (5 August 2008)

ol ma Home              ols23       Judicial
review "plainly justified" (20 October 2008)

ol ma Home              ols24       Compliance
with EU requirements (Case Study 3) (3 November 2008)

ol ma Home              ols25       The June
2008 amendt of the Architects Act (… consequences) (4 November 2008)

ol ma Home              ols26       Parliamentary
written replies (4 November 2008)

ol ma Home              ols27       Variations
to the Code (13 January 2009)

ol ma Home              ols29       The 2009
election (6 February 2009)

ol ma Home              ols30       Status of
the Registrar ... as Returning Officer (6 February 2009)

ol ma Home              ols31       Conflicts
of Interest: s.4(2A) Architects Act(10 Feb/ 21 Apr 2009) (CS 3 Pt 2)

ol ma Home              ols32       Enforceability
of the Act in doubt (Case Study 3, Pt 3)(22 April 2009)

ol ma Home              ols33       The right
to have a name removed is thwarted (27 April 2009)

ol ma Home            ols34       Code
revision - plain English? (28 April 2009)

ol ma Home            ols35       RIBA’s
new chief executive (6 May 2009)

ol ma Home            ols36       Retention
of name in the Register(16
May 2009)

ol ma Home            ols37       Course validation or prescription of
qualifications? (26 May 2009)

ol ma Home            ols38

ol ma Home            ols39

ol ma Home            ols40

ol ma Home            ols41

ol ma Home            ols42

ol ma Home            ols43

ol ma Home            ols44

#end of page 5#

[Link to AARUK]

o14 ma Home    ou         MAIN
PANEL, upper main and left

STATEMENT

“AARUK......
About Architects Registration in the UK

An independent
website where inquirers can find

links with other
sources of information and some

information not
easily available elsewhere.”

“Many
topics affecting the future of architecture are undergoing policy development.
Our aim is to give access to information which will enable inquirers to gain a
true and fair view of the issues.

The handlist
entitled "Architect as a working title for one of the sectoral professions
of the European Union" ( html version ) ( pdf version) outlines some
salient points about the chronology of the legislation and the European Union
dimension. It is to aid inquirers and policy-makers in connection with some of
the less frequently asked questions.

On official
statements inconsistent with the legislation enacted by the UK Parliament, see
explanatory notes The sequence of the main page titles (left) follows the
sequence of the Act.”

ou  ma Home     ous3     On official statements inconsistent with the
legislation html [=o23 ma Home]

For
explanatory
notes on official statements inconsistent with the legislation enacted by the
UK Parliament, see: 25  ma Regas  25s1.

See
AARUK website for on screen links to the handlist entitled "Architect as a
working title…“ [o21/o22 ma Home zn:]

“This
website © AARUK 2007-2009: free licence for copyright purposes, subject to
acknowledgement, viz: First published on website of AARUK – About
Architects Registration in the United
Kingdom”

~~

ol ma Home       HOME
PAGE, MAIN PANEL (lower)

STATEMENT

“AARUK has
been set up by an informal grouping of individuals who consider that the
advancement of architecture is a continuing public good.  We are predominantly but not exclusively
architects.  This website grows out
of communications between us over a period of some years.

We are in no way
in competition with existing sources, official or commercial.  Our aim is to offer an auxiliary service
to inquirers who do not know where to begin, or whose line of inquiry has
reached a dead end.

Editorial policy
is to allow contributions which will enable inquirers to be better informed
about topics of interest to them than they would be by relying only on a
limited range of sources such as official communications or press
coverage.  Some may be more directly
connected with Registration and the Architects Act  [ol ma Home ols1], some less so.

Contact: info @
aaruk.info (please remove the gaps–they are there to discourage spam
crawlers)”

~~

Next AARUK title: HOME  (page}

#END OF SECTION HOME PAGE
PANELS

#end of page 6#

[Link to AARUK]

oo>HOME
(Page)

oo ma Home      HOME
(Page)

ou  ma Home     HOME PAGE, MAIN PANEL,
upper

ou  ma Home     ous1     ze: HANDLIST "Architect as a working
title…” html [=o21 ma
Home]

ol  ma Home      HOME PAGE, MAIN
PANEL, left, lower, latest

o11 ma Home    zx:  LINKS TO OTHER WEBSITES-a chartered
bodies (RIBA
and others)

o12 ma Home    zx:  LINKS TO OTHER WEBSITES, and SCANNED-b
legislation

o13 ma Home    zx:  LINKS TO OTHER WEBSITES-c historical
notes

o14 ma Home    MAIN
PANEL

o14 ma Home    ou         MAIN
PANEL, upper main and left [ou ma Home]

ou  ma Home     ous1     ze: HANDLIST "Architect as a working
title…” html [=o21 ma
Home]

o14 ma Home    o14s2   ze: RIBA paper Status of the ARB
(May 2003) (version c.p7)

o15 ma Home    o15s1   ze: Point of view on statutory
registration (6 Nov2006) ) [= ols11]

o16 ma Home    LATEST from 2006 and 2007
including CASE STUDIES 1 AND 2 (PCC)

ol ma Home       HOME
PAGE, left, lower, latest

o17 ma Home    LATEST from 2008 and 2009
including CASE STUDIES 2 (PCC) and 3 (EU)

ou  ma Home     ous1     ze: HANDLIST "Architect as a working
title…” html [=o21 ma
Home]

TITLE : “ARCHITECT”
AS A WORKING TITLE FOR ONE OF THE SECTORAL PROFESSIONS OF THE EUROPEAN UNION, July 2008

EXCERPT:

See AARUK website for the
whole article with on screen links (not reproduced in the APPENDIX hereto}.

[This
is a] “HANDLIST" for use as a guide to the contents of the AARUK
website

and Wikipedia links,
[comprising] Introduction, Extracts from articles and Notes.

The
set of cross-referenced articles noted in this “Handlist” provides
factual information and a description of some of the historical and contemporary
background to the current legislation (up to June 2008) about the statutory
Register of Architects, much of which had not been easily obtainable
elsewhere....

The
Architects Registration Board [ARB] is one among other bodies which have been
designated as a “competent authority” under legislation made in
compliance with treaty obligations of the United Kingdom as a state of the
European Union. For this purpose architects continue to be among the
“sectoral professions” together with dentists, medical doctors,
nurses, midwives, pharmacists and vets. The Departmental and other negotiations
leading to present legislative outcomes have been prolonged and intricate.

In
recent decades some of the more potent influences have been negotiations
connected with the European Communities Act 1972 of the Westminster Parliament
and the successive treaties which have been made in the continuing development
of the European Union as a multi-lateral treaty organization and inter-state
political entity formed to exert legislative, juridical, social, economic and
fiscal controls. An outcome marking a further stage in this development was a
set of changes in the laws of the United Kingdom made by four Statutory
Instruments coming into force consecutively in the period October 2007 to June
2008, namely:

2007
No. 2781 Professional Qualifications

2008
No. 1276 Trade Descriptions

2008
No. 1277 Consumer Protection

2008No.  1331 Architects....

~~

o14 ma Home    14s2     ze: RIBA paper Status
of the ARB (May 2003) (version c.p7)

TITLE : The Status of the
Architects Registration Board: PART 2 The Board's status and function

EXCERPT:

See AARUK website for
link to the whole article (not reproduced in the APPENDIX hereto}.

GENERAL PRINCIPLES

The
existence of the architectural profession, organised both in the sense of

having schools and membership bodies, and in the sense of
possessing, creating,

sharing and practising skill and knowledge beyond the ordinary
and with a view to

proficiency and excellence, is the premise for the existence of
the Registration Board [ARB];

and if there were no such profession, the Board could not
conjure it into existence.

This can be taken as the criterion and touchstone for
considering the validity of claims

which are being made about the Board's powers and functions.

A
public register is essentially an administrative device. The Board is

essentially constituted as an administrative organ for
maintaining and publishing the

Register of Architects. It is not a professional body with power
to admit or exclude

from a profession. It has developed a theory about its functions
which in practice has

resulted in extending administrative requirements of its own
making beyond what has

been authorised by the Act, as if this were justified in
furtherance of a policy

represented by the slogan which it has given itself and prints
on its official

publications including the Architects Code: "Protecting the
consumer and

safeguarding the reputation of Architects"....

See
also: On
official statements inconsistent with the legislation [25s1 TITLE: Architects Act 1997: Questions concerning
the amendment of June 2008 (AARUK CS 3, Pt 2)  = ou ma Home ous3  = o23 ma Home]

~~

o15 ma Home o15s1  ze: Point of view on statutory
registration (6 Nov2006) ) [= ols11]

TITLE: A point of view on
statutory registration: current options

EXCERPT:

See AARUK website for the
whole article with on screen links, or as reproduced in the APPENDIX hereto.

…By
the 1990s it was almost universally accepted that the time had come to bring
the statutory Architects' Registration Council [ARCUK] as it then was to an
end. Opinion within the profession was divided among those who held that
statutory registration should be discontinued altogether and those who held
that the registration body should be reconstituted….

What
follows sets out a case for discontinuance of statutory registration. It was
available in more or less the same terms in 2004 at the time the RIBA Council's
Task Group on ARB was preparing the report quoted above (the Highton Report)  [ma Reged 32s1 zx:], and a certain amount of the historical
background set out below (including the chronology of key events) was used in
an appendix to the Group's Report.

The 1931 Regime

Statutory
registration has its origin within the architectural profession in the latter
part of the nineteenth century. It was then (as now) a matter of controversy.
However, by 1905 the RIBA had established a policy to secure satisfactory
training of architects by statutory means. …

Under
present conditions there are essentially two options respecting registration -

1. Continuance of
the Register of Architects under the ARB regime, subject to amendment of the
Act to modify the Board's [ARB] statutory powers.

2. Discontinuance
of the Register of Architects by repeal of the Act subject to interim and
transitional arrangements, and other measures (such as regarding education and
discipline).

The choice between
continuance and discontinuance is the fundamental issue. A number of subsidiary
issues, including the question of the loss of professional control of the
Register have been raised (see Highton Report). But even if the ills they
indicate could be remedied, the following analysis indicates that the
fundamental issue would remain unresolved. ...

See
also: Unequal standard across Europe [32  ma Reged]

For
Highton Report (indexed as “ma Reged 32s1 zx:” ) see AARUK website
for on screen links.

~~

Next AARUK main page title:
ARCHITECTS ACT

#END OF SECTION HOME (Page)

1>ARCHITECTS ACT

1   ma Home     ARCHITECTS ACT

2   ma ArcAct    A useful 21st-century function?

3   ma ArcAct    3s1       ze:
Analysis with some passing remarks...
with LINKS (14 Dec 2005)

3   ma ArcAct    3s3       (See also)
Ambition, Rationalisation...Solution?
with LINKS (15 Dec 2005)

5   ma ArcAct    Another regime? s.17 Building Act 1984 (30 March
2006)

6   ma ArcAct    The option of dissolution: IBRC precedent of March
2001

7   ma ArcAct    Incorporating the requirements of 2005/36/EC:
Transposition (6Jun08,27Sep07)

7   ma ArcAct    7s4       "...Why
now?": AARUK contributor's comments on consultation draft (25Sept07)

8   ma ArcAct    8s1       The right
to have name removed from the Register is thwarted (23 April 2009)

8   ma ArcAct    8s2       Retention
of name in Register (16 May 2009)

1  ma Home      ARCHITECTS
ACT

2  ma ArcAct     A useful 21st-century function?

TITLE: A useful
21st-century function?

INTRO:

Among
members of the profession, and the profession’s friends and well-wishers,
opinions have been divided for well over a century about the merits of
statutory registration. Both supporters and opponents of statutory registration
have included some who believed it tended to weaken the influence of the RIBA,
or other chartered bodies, and some who believed the contrary. It is probable
that today there is a large proportion who have no very definite opinion or who
are not well enough advised to be able to form an opinion upon which any one
else could usefully rely. It is a fact, however, that feelings about the matter
can range from the tepid to the furious.

The
result is that Parliament, as the legislator and guided by the government, has
had to maintain as best it can a state of benevolent neutrality among the
holders of these contending views, consistent with more general public policies
for business competition, employment, professional education and so on. The Act
cannot properly be claimed by any one of the high-minded factions or sectional
interests as being in furtherance of any one particular interest rather than
another. Some critics may carp that statutory registration is good for so
little that it is of no further practical use; others that its usefulness would
benefit from some tweaking and tuning. All parties reckon that there is no room
for complacency.

Today,
some practitioners or other architects may have forgotten what they used to
know about the Register and the context in which they felt that it had a more
or less useful function; some may not have reviewed carefully enough what use
it may have in the changing circumstances of the 21st century; responsible
policy-makers may have been side-tracked and lost sight of the way forward.

The following
“Analysis” of the Act gives some pointers for policy-makers and
inquirers.

~~

1   ma Home     ARCHITECTS ACT

3  ma ArcAct     3s2       Analysis
with some passing remarks... html with LINKS (14 Dec 2005)

TITLE: Architects Act
1997- Analysis, with some passing remarks and questions for policy-makers

EXCERPT:

See AARUK website for the
whole article with on screen links, or as reproduced in the APPENDIX hereto.

SUMMARY:

Conciseness
- Originating act, 1931 - Amending act, 1996 - Consolidation act, 1997 - Note
1:  “Standard required”
to be ascertained in professional practice, not prescribed for ARB’s
convenience - Exposure to obloquy.

Scheme
of the Act - General burden, voluntary burdens - Statutory choices - Third
party burden on Schools - ARB’s supra-statutory claim against registered
architects. - Architecture, activities in the field of architecture,
architectural services - Mentioned but not defined - Note 3:  New specialisms - Commercial, iconic or
domestic values - Information for others - Relevance of “architect”
as restricted title.

Government
appointed majority - Note 4:
Momentum of ARB’s expansive tendency - Annual reports claiming ARB
exalted to status of regulatory authority for the profession with  “extensive powers”.

Standard
8 - ARB’s overbearing pretensions - PCC and natural justice.

…The
membership of the Board [ARB] is the result of one of the changes made by the
1996 Act to the registration body’s previous constitution when its name
had been tFhe Architects’ Registration Council of the United Kingdom
[ARCUK]. The Act abolished the Board of Architectural Education, renamed the
Council as the Board, and made this Board [ARB] consist predominantly of
persons appointed by the Privy Council department.

Note
4: It had the effect of introducing a flaw into the Act as a whole,

which some would call
latent and others patent. It was through this weakness in

the structural design of
the Act that Dr Kelly, CBE, one of the newly appointed

members and the first
chairperson, was able to lead and drive the Board ARB] with

such headstrong gusto,
that even now [2005] the Board is undergoing some difficulty

in overcoming the
momentum of its misdirection, and friendly relations with the

RIBA remain in jeopardy.

Her
Annual Reports revealed an unflinching determination, with more regard to

“legal
advice” than to the Act itself, to exalt the Board to a regulatory

authority, as if it had
been furnished with an amplitude of power in the field

of architectural practice
comparable with, for instance, the Bank of England in

its field under section 1
of the Banking Act 1987 (“The Bank ... shall have the

duty generally to
supervise the institutions authorised by it in the exercise

of” the powers
conferred on it by the Act: mentioned in a case reported in 1991,

which was one of three
cases cited by the ARB in February 2002 in answer to a

registered person’s
query about Standard 8 compliance certificates; anyone

properly advised can see
that all three cases tend to support the opposite of

the ARB’s claim).

–
Do responsible policy-makers now consider that the Act and its operation has

effects on Schools of
Architecture, on entry into the profession and on

practising architects
which are increasingly anomalous? …

AUTHOR:

-----Robert Johnstone, M.A.
of the Middle Temple
& Lincoln’s Inn,
Barrister. 14 December 2005

See also : some statements
and observations, and a suggestion that may

be of interest to inquirers
and policy makers: “Ambition, Rationalisation...Solution?”

See
also: On
official statements inconsistent with the legislation [25s1 TITLE: Architects Act 1997: Questions concerning
the amendment of June 2008 (AARUK CS 3, Pt 2)  = o23 ma Home]

~~

1   ma Home     ARCHITECTS ACT

3  ma ArcAct     3s3       (See also)
Ambition, Rationalisation...Solution?
with LINKS (15 Dec 2005)

TITLE: Architects Act
1997: Ambition, Rationalisation... Solution?

INTRO: AARUK invites
inquirers and policy-makers to compare the following statements, and consider
whether the ARB knows its own mind and business:

NOTE:

1. An Ambition

"Public Relations... It
seems that the role of a statutory regulatory body is not clearly understood...
The fact is that the Architects Act 1997 gives us a clear mandate to operate.
The Board's responsibility is to ensure that that mandate is delivered. ARB is
not a club you can join if you wish. It is a regulatory body, with extensive
responsibilities for registration, consumer support, validation and assessment,
and regulation."

Dr
Barbara Kelly, CBE, first chairperson of the Architects Registration Board in
the Board's Annual Report for 1999/2000.

see
further:  Application to Quash -
L.& L. cases for hearing 10/2/06

2. A Rationalisation

"The raison
d’etre of ARB is to regulate the name and title 'architect'".

Humphrey
Lloyd, Q.C., third ARB chairperson, in a paper available from the Society of
Construction Law  (February 2003).

see
further: SARB Part 2 - Judge Lloyd's Assertions - Protection of Title

3. A Designation

"Regulation Department.
Use of title ‘architect’ – Complaints about an architect
– Professional Conduct Committee Hearings – Code of Conduct and
Professional Standards – Registering as a company"

ARB
website, eBulletin/November/05 and site index.

see
further: SARB Part 2 - Protection of Title - The Code and the PCC

4. Information

"The Board as
‘Regulator’. It has been suggested that the Board is not a
‘regulator’ of the architects 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," [by
the Board when obtaining this information for its own use] "for they
largely involve issues of statutory interpretation which require the
legislation to be construed and not given epithets."

ARB
website Press Gallery, summary of a barrister's opinion 10/11/2003.

see
further: SARB Part 2 - Protection of Title - The Code and the PCC

5. An Observation

"The words
‘regulator’ and ‘regulation’ are not used in the Act
and that status is not conferred upon the Board. It could be argued that the
Board’s assumption of this role is adverse to the public interest... A
contrary proposition to the Board’s claim is that an essential
characteristic of a regulatory body in this context is to have jurisdiction or
control over particular functions or activities in the supply of goods or
services... whether or not the regulatory method is in conjunction with a
system of certificating or licensing (such as applies to solicitors or places
of entertainment)... The Board's claim to regulatory status appears to be the
result of want of understanding how it can usefully go about fulfilling the
services that have been assigned to it by statute for the public
benefit..."

(Signed)
article in RIBA Journal, June 2003.

see
further: SARB Part 2 - General principles - Qualifications

6. A Solution?

"An Act to amend...
statutory provisions and rules of law in order to remove or reduce certain
burdens affecting persons in the carrying on of trades, businesses or
professions or otherwise and for other deregulatory purposes...".

The
long title of the Deregulation & Contracting Out Act 1994.

see
further: RIBA website - ARB website

AUTHOR:

--- Robert Johnstone, M.A.
of the Middle Temple
& Lincoln’s Inn,
Barrister.  15 December 2005

See
further : Another regime? s.17 Building Act 1984

See
also: On
official statements inconsistent with the legislation [25s1 TITLE: Architects Act 1997: Questions concerning
the amendment of June 2008 (AARUK CS 3, Pt 2)  = o23 ma Home]

~~

1   ma Home     ARCHITECTS ACT

5   ma ArcAct    Another regime? s.17 Building Act 1984 (30 March
2006)

TITLE: Another regime?

ARTICLE:

In
the 21st century, a registration regime concerned with the technical
sufficiency of buildings

is likely to be more useful
than the mere protection of the business use of the title 'architect' under the
ARB regime could ever be. This could apply to persons specifically qualified,
whether in the field of architecture, engineering, or surveying. That is,
registration would be across all disciplines contributing to the building
process.

If
that proposal were adopted, all the chartered bodies would be expected to
collaborate in enabling it to be done. It could be a better bargain both for
the public at large and for clients who, as building owners and developers, are
required to comply with statutory provisions under the Building Acts. In this
connection, responsible policy-makers could consider the existing provisions of
the Building Act 1984 (sections 17 and 49) and the Building (Scotland) Act
2003 (sections 7 and 11), and the enabling powers given respectively to the
Secretary of State and Scottish Ministers under these Acts.

See further : The option of
dissolution: IBRC precedent

~~

#

1   ma Home     ARCHITECTS ACT

6   ma ArcAct    The option of dissolution: IBRC precedent of March
2001

TITLE: The option of
dissolution

NOTE:

In
the event that another regime is considered, care will be needed to protect the
interests of those few who benefit directly from the activities of the Board
[ARB] principally its employees. But attention will also be needed to ensure
that protection is provided both for the liabilities of the Board and for the
return of the balance of its assets to those who have funded it.

A
similar process was conducted by the Treasury in March 2001 when it ordered the
dissolution of the Insurance Brokers Registration Council.

See next : Incorporating the
requirements of 2005/36/EC: Transposition

~~

1   ma Home     ARCHITECTS ACT

7   ma ArcAct    Incorporating the requirements of 2005/36/EC:
Transposition (6Jun08,27Sep07)

TITLE: Incorporating the
requirements of 2005/36/EC

NOTE:

At
the end of August 2007, the Government published a consultation document on
draft regulations concerning the provisions which affect architects'
registration under the European Directive 2005/36/EC (on the Recognition of
Professional Qualifications). Bearing in mind that several European states have
no legislative restriction either on the practice of architecture or the use of
the title "architect" (without any apparent disadvantage), and
bearing in mind the complicated but necessary text that is required to amend
the UK legislation, policy makers may now consider that regulations of
universal application, such as the Building Regulations, may be considered a
sufficient means of serving the public, and that the restrictive Architects Act
has now become wholly redundant.

By
Statutory Instrument 2008 No. 1331 The Architects (Recognition of European
Qualifications etc and Saving and Transitional Provision) Regulations 2008, the
Architects Act has been amended so as to implement the Directive in the United Kingdom.
The Regulations come into force on 20 June 2008.

See [7 ma ArcAct
7s4] Comments, dated 25 September 2007

~~

1   ma Home     ARCHITECTS ACT

7   ma ArcAct    7s4       ze:
"...Why now?": AARUK contributor's comments on consultation draft
(25Sept07)

TITLE: Comments on the
Government’s draft amendments to the Act : why now? (draft amendments
published in August 2007 for public consultation)

EXCERPT:

See AARUK website for the
whole article with on screen links, or as reproduced in the APPENDIX hereto.

Treaty
obligations: From the end of 2007 the Architects Act 1997 will have been
extensively amended by regulations made by a minister of the UK government under section 2(2) of the UK European
Communities Act 1972. This amendment will have been made pursuant to the current
European Directive 2005/36/EC (alias EC/36/2005) and treaty obligations binding
upon the UK
and other states of the European Union. In that respect, amendment was
inevitable and inexorable, and consequent upon the restrictions applying (for
well over 60 years) to the use of the simple word "architect" in
connection with the statutory Register, operated under Westminster legislation
by which the executant body was renamed as the Architects Registration Board
[ARB] from 1997 (previously Architects’ Registration Council of the
United Kingdom [ARCUK]). The amendment contrives to add many pages of
complicated text to a piece of legislation which was otherwise tolerably trim,
neat and comprehensible in its consolidated form in the 1997 Act….

If
the Register of Architects is to have a future this can be simply to serve as a
government office for such certifying functions as may be inevitable in this
country pursuant to EU obligations, while chartered bodies are left free to set
their own qualifying standards for membership.

The
public: It must have been a challenging task for responsible policy-makers to
do justice both to the general public and to architects, wherever they have
obtained their formal qualifications. Independent observers may see (as had the
author of the Warne Report which preceded the amending legislation of 1996)
that the public is best served by means of statutory regulations of universal
application (such as Building Regulations) on the one hand and arrangements
free from the taint of monopoly (such as have been made by the RIBA for Client
Design Advice) on the other.

AUTHOR:

An AARUK contributor, 25
September 2007.

See further:

23  ma Regas    Amendment
of June 2008 to the Act of 1997: An early consequence

23  ma Regas    23s1     Amndt of Jun08 to the
Act of 1997, links (zx: ) to Regulns and Explanatory Mems.

23  ma Regas    23s2     AARUK appraisal of
Amndt of Jun08 to the Act of 1997

24  ma Regas    Parliamentary
replies: cost of retention (Oct, Nov 2008)

25  ma Regas    Case
Study 3 (EU) Part 2: Conflicts of interest: s.4(2A) (10Feb09);SI 2008No. 1331

See next: The right to have
name removed from the Register is thwarted

~~

1   ma Home     ARCHITECTS ACT

8   ma ArcAct    8s1       The right
to have name removed from the Register is thwarted (23 April 2009)

TITLE: The right to have
a name removed from the Register is thwarted (23 April 2009)

[NOTE: Despite there being a
clear right for a registered person to have his or her name removed from the
Register at any time, it appears that the Registrar has denied such a request
on grounds of "public interest".]

ARTICLE:

Some
time before a hearing of the Professional Conduct Committee on 7 April 2008, it
was reported the accused architect had asked that her name be removed from the
Register. That request had been denied by the Registrar for on 9 April 2008
Building Design magazine revealed: “Arb refused so that disciplinary
proceedings could be completed”.

Section
3(3) of the Act provides no power to the Registrar to deny a request for
removal. It

says, without proviso: The
Registrar shall make any necessary alterations to the Register and, in
particular, shall remove from the Register the name of any registered person
who has died or has applied in the prescribed manner requesting the removal of
his name.

In
a PCC decision three years earlier, the chairman appeared to be aware that the
architect in that case had made a similar request, for in reasons given for the
decision as prominently posted (see Footnote) on the Board’s website he
said: “Any dispute as to whether a person’s resignation from the
register should be accepted or not is a dispute between that person and the
Registrar. So far as the jurisdiction of this Committee is concerned, if a
person’s name is on the register then this Committee must deal with any
complaints which are brought before it. We have no option. As I say, if anybody
wishes to challenge a decision of the Registrar to refuse a resignation from
the register, then they must pursue it in another forum against the Registrar:
it is not a matter for this Committee.”

Such
passivity on the part of this committee of the Board is remarkable.

AARUK
understands the reason given by successive Registrars in such circumstances has
been “the public interest”. But given that the Act is silent on
that, and in the absence of any permissive proviso or qualification that
provides an exception in these circumstances, the Registrar in the proper
discharge of her duty to comply with the Act is bound to remove a
person’s name from the Register within a reasonable period of being
requested to do so by that person. There is no compulsion for an architect to
remain registered: it is an entirely voluntary choice.

Footnote:  Under section 15(4) of the Architects
Act, the PCC (and not the Board) is to publish only the names of persons whom
it has found guilty, a description of the conduct, incompetence or offence
concerned, and the nature of any disciplinary order made. Nothing else is
permitted.

See also: Retention of name
in Register (16 May 2009) [8 ma ArcAct
8s2]

~~

#

8   ma ArcAct   The right to removal of a name
from the Register

8   ma ArcAct   8s3        Retention of name in
Register (16 May 2009)

TITLE: Retention of name
in Register

[NOTE: Despite there being a
clear right for a registered person to have his or her name removed from the
Register at any time, it appears that the Registrar has denied such a request
on grounds of "public interest".]

ARTICLE:

ARB
Rules 19 and 20 as amended in 2008 may have inadvertently left Board members,
officials

or others with an impression
that a registered person can be required by the Board to undertake

“sufficient
activities including continuing professional development and active engagement
in the

practice, or teaching or
study of architecture in order to maintain competence to practise in

accordance with the Board’s guidelines which shall be published from
time to time”.

But
regardless of the merits of any such guidelines, it is not within the
provisions of the Act that

the Board shall be able to
put registered persons under requirement in this respect.

Initial
and continuing registration is voluntary. Whether any architect who is entitled
to be

registered chooses to
exercise the statutory right to be registered, or to discontinue registration

by lapse of retention fee or
otherwise at any time for any reason, is that person’s decision. A

person may be denied
registration only within the terms of the Act itself, which the Board cannot

extend by Rules or
otherwise.

Further,
any person, whether or not a registered person, is free satisfactorily to
comply with the

guidelines; and to the
extent that the guidelines describe commendable practice such a person may

need no incentive of
registration or continuing registration to do so. Similarly, any person can

comply with good practice of
the kind published by a professional body, such as the RIBA Plan

of Work, whether or not s/he
is or ever has been one of its members.

Before
the amendment attention had been drawn to this issue in the note on “Competence to

practise – position of persons already on the
Register”.[42 ma Regmp
42s1 Note on Position of persons already on the Register; 42s2 ze: Note on
Proposed amendment to Rule 20.]

See
also points 2. to 5. in the Summary in a note included in AARUK Case Study 1 as

“explanatory
introduction” [74 ma Pfscdp
74s1s2 4A1b]:

Ÿ
“...
2. Apart from officers, employees and agents of the Board, the Act creates no
duties or

obligations towards the
Board which fall on any one else at all.

Ÿ
3.
Section 3(4) states: “The
Board [ARB] shall publish the current version of the Register

annually...” other provisions of Part II of the Act
prescribe how the Register shall be kept

up to date, and who shall be
entitled to be registered; other provisions of Parts II and III

prescribe for the Board the
circumstances, events or conditions when a person’s name shall

be removed from the
Register; and other provisions prescribe for the Board certain ancillary,

or derivative and secondary,
duties in connection with the Board’s primary responsibility for

the maintenance and regular
publication of the Register of Architects.

Ÿ
4.
Nothing in the Act itself creates any obligation which an architect owes to the
Board.

Ÿ
5.
It is self-evident that the Board owes a duty of care to registered persons
first, to see that

they are duly registered,
and secondly, not to subject them to any demands or threats

connected with registration
which are not expressly within the Act.”

On
“official
statements inconsistent with the legislation enacted by the UK Parliament” see: Questions concerning the amendment
of June 2008 [25 ma Regas 25s1 (AARUK CS 3, Pt 2) = o23 ma Home]

See also: The right to have
name removed from the Register is thwarted (23 April 2009) [8 ma ArcAct 8s1]

~~

Next AARUK main page title:
ARCHITECTS REGISTRATION BOARD

#END OF SECTION ARCHITECTS
ACT

11>ARCHITECTS REGISTRATION BOARD

11  ma Home     ARCHITECTS
REGISTRATION BOARD

12  ma ArcRB    ze:
Composition of the Board [ARB]. Handbook for Board members

15  ma ArcRB    The
"wider remit" (24 Feb 2006)

17  ma ArcRB    Status
of the Registrar (17 March 2006)

11  ma Home     ARCHITECTS
REGISTRATION BOARD

12  ma ArcRB    ze:
Composition of the Board [ARB]. Handbook for Board members

TITLE: Composition of the
Board

EXCERPT:

See AARUK website for the
whole article with on screen links, or as reproduced in the APPENDIX hereto.

Part
I of Schedule 1 of the Architects Act provides for the composition of the
board. 8 lay members are appointed by the Privy Council while 7 are elected
from the register by those on the register….

Board
elections are held every three years with a clean slate. If a vacancy among the
elected members occurs, the board appoint another member from the register who
holds the appointment until the next election round. On the other hand appointed
members may hold their posts for two periods of three years, with appointments
made to fill casual vacancies as they occur lasting a full three years. Thus
the majority of appointed members, in addition to carrying the majority, also
provide continuity across each triennium….

By
paragraph 8.1 of the former Policy on Matters to be Discussed in Open and
Closed Sessions of Board Meetings, which was incorporated into the Handbook,
elected members were [informed that they would] not only "be bound by
decisions of the board or any committee of the board" but also that they
would "not make any public comments which would call into question any
decisions either past or present". …

Now,
it is acknowledged, the Policy has been changed and is less oppressive, though
it must be said that some would consider it unwise that there is no public
accountability over a decision to take an item of business into closed session.
However, from 20 June 2008, when it comes into force, the Board will be
influenced by The Architects (Recognition of European Qualifications etc and
Saving and Transitional Provision) Regulations 2008 (S.I. 2008 No. 1331 - for
which see Legislation), where at Regulation 21 provision is made for a new
section 22c of the Act which prohibits the Board and the Registrar from
disclosing certain information.

See
also: The "wider remit"

~~

11  ma Home     ARCHITECTS
REGISTRATION BOARD

15  ma ArcRB    The
"wider remit" (24 Feb 2006)

TITLE: The " Wider
Remit"

NOTE:

In
a letter to the editor of Building Design, published on 24 February 2006, Mr
Humphrey Lloyd QC, then chairman of the Architects Registration Board, said:
... "Arb only fulfils its statutory role, no more" ...

This
contradicts the policy adopted by the Board when it first took up its powers.
The first chairman Dr Barbara Kelly considered this freedom from statutory
constraint so important that she wrote to all the architects on the Register,
saying: ... "You might not be aware that in addition to the statutory
functions ARB is undertaking in place of ARCUK, ARB's remit is considerably
wider" ...

AARUK
knows of nothing showing that the Board has ever contradicted this statement.
When in 2004 the Board's solicitor was asked from where the powers for this
"wider remit" were derived, he replied with the novel proposition
that they were "extra-statutory powers", clearly overlooking the rule
for public authorities that "what is not permitted [by Statute] is
prohibited".

[AARUK
invited inquirers and policy-makers to consider whether the Board's persistent
adherence to the "wider remit" called Mr Lloyd's accuracy and
objectivity into question when he said his purpose is "To repeat some
basic facts...".]

See
also: On
official statements inconsistent with the legislation [25s1 TITLE: Architects Act 1997: Questions concerning
the amendment of June 2008 (AARUK CS 3, Pt 2)  = o23 ma Home]

~~

#

11  ma Home     ARCHITECTS REGISTRATION BOARD

17  ma ArcRB    Status
of the Registrar (17 March 2006)

TITLE: Status of the
Registrar ...

INTRO:

The
following was published when the ARB had announced (17 March 2006 ) the
appointment of Ms Alison Carr in place of the former Registrar and Chief
Executive (Mr Robin Vaughan), noting that the new appointment was made only
after consulting a representative of the newly elected members of the Board,
not only because the appointment of a the Registrar by s.2.of the Architects
Act is the duty of the Board, but also because it is the Board including its
elected members that Ms Carr serves:-

ARTICLE:

... when acting as Registrar:

It
is the duty of the Board to "decide the period for which, and the terms on
which, the Registrar is appointed". It is therefore disappointing that the
Board does not appear to have considered those terms before offering an
appointment bearing in mind the expectation of the Government when the new
constitution of the Board was devised.

Inquirers
and policy-makers may well wish to consider the wide scope that was given to
the Board. Under the heading "Registrar" on page 3 of Baroness
Denton's Consultation Paper [Reform of Architects Registration, DoE 19 July
1994], it was proposed as long ago as 1994 that "the Registrar would be a
named appointee of the Board which would decide whether the Registrar should be
an employee or a contractor. This is intended to ensure that the Registrar is
identifiable and accountable, but to allow scope for different methods of
appointment". It appears that no alternative to a salaried employee of the
Board was considered.

... when acting as Returning
Officer:

As
has been mentioned in the AARUK article "Composition of the Board”
[12  ma ArcRB], doubts about the
Electoral Scheme have been raised over the board's chief executive acting as
the returning officer. Under the General Rules of the board, rule 4(iv), the
chief executive acts on behalf of the board in implementing its policies
"as is desirable or necessary for the efficient operation of the board's
activities". As returning officer, under paragraph 5.8 of the Electoral
Scheme, those duties may include editing election statements of candidates
"as appropriate" if the returning officer "believes that the
statement requires editing".

AARUK
is aware that in January 2009 the Returning Officer approached at least 7 of
the candidates with a view to persuade them to change the substance of their
statements, perhaps prompting a less generous observer to suggest interference.
One of the candidates, Ruth Brennan, refused to entertain any such change, and
has published not only her original proposal, but also the version of her
statement that the Board's chief executive wished to substitute. Miss Brennan
has also published a robust defence of her original statement. But despite
these measures, the Returning Officer has published a revised version of the
statement.

Bearing
in mind that this process has been at least in part non-consensual, it is
surprising

that one of the candidates,
who supports the entirety of the Board's policies without criticism, appears to
have been allowed to include a remarkably contentious assertion in her
statement, namely that the Board's work "primarily aims to ensure high
standards of competence and professionalism for architects", an assertion
that observers may conclude is far from justified by reference to the Board's
governing statute.

The
Electoral Reform Society, which has the conduct of the election of members to
the Board, has informed AARUK that with many private schemes, it is the case
that an executive officer may double up as returning officer. However, the ARB
is not a private organisation but a corporation set up by a public Act of
Parliament. In the light of the chief executive's activities in this role,
AARUK suggests that the Secretary of State and the Privy Council may wish to
reconsider their approval of the Electoral Scheme.

~

Next AARUK main page title:
REGISTRATION

#END OF SECTION ARCHITECTS
REGISTRATION BOARD

21>REGISTRATION

21  ma Home     REGISTRATION

22  ma Regas    Cost
of registration

23  ma Regas    Amendment
of June 2008 to the Act of 1997: an early consequence

23  ma Regas    23s1     Amndt of Jun08 to the
Act of 1997, links (zx: ) to Regulns and Explanatory Mems.

23  ma Regas    23s2     AARUK appraisal of
Amndt of Jun08 to the Act of 1997

24  ma Regas    Parliamentary
replies: cost of retention (Oct, Nov 2008)

25  ma Regas    Case
Study 3 (EU) Part 2: Conflicts of interest: s.4(2A) (10 Feb 2009); SI 2008 No.
1331

25  ma Regas    25s1     Explanatory paper of 21
April 2009 concerning the amendment of June 2008

25  ma Regas    25s2     Case Study 3 (EU) Part
3: Enforceability of Architects Act in doubt (22 April 2009)

21  ma Home     REGISTRATION

22  ma Regas    Cost
of registration

TITLE: The cost of
registration

ARTICLE:

Under
the Architects Act, section 8, the Board may require registered persons to pay
a retention fee of a prescribed amount if they wish their names to be retained
in the Register in any calendar year after that in which the names were
entered. The cost of the retention fee may be correlated with changes in the
Retail Prices Index to show that the cost of retention, in real terms, has
risen greatly. [See a graph on AARUK website.]

Although
the Architects Act is notable in that it makes no reference whatever to
regulation, the Architects Registration Board has taken that role upon itself.
In his forward to the 2005 Report of the Better Regulation Commission (authors
of "Less is More"), Sir David Arculus said: "Perhaps our most
important achievement has been to put the spotlight on the cost of regulation
... We have estimated that the cost of regulation to the UK economy is between
10% - 12% of GDP - or over £100

billion - similar to the
annual take in income tax ..."

Tony
Blair, as Prime Minister, in a speech to the Institute of Public Policy
Research said: "Not every 'scandal' requires
a regulatory response. Bad people will find a way round the law no matter how
good the law is. Spending hundreds of millions of pounds to reduce the risk to
zero may be a foolish way of prioritising".

Since
its establishment in 1997, the Architects Registration Board has secured
penalties against an average of less than four architects a year. There are
about 30,000 on the register. The cost to the profession of registration during
that period has been over £25 million at 2008 prices.

See
also: Amendment of June 2008 to the Act of 1997

~~

21  ma Home     REGISTRATION

23  ma Regas    Amendment
of June 2008 to the Act of 1997: an early consequence

TITLE: The amendment to
the Architects Act of June 2008: an early consequence

NOTE:

Regulations
which came into force on 20 June 2008 established rules for the recognition of
professional qualifications enabling migrants from the European Economic Area
or Switzerland to register
as architects in the United
Kingdom. These regulations set out
provisions for facilitating temporary and occasional professional services
cross-border, and also provide for applicants seeking to establish themselves
on a stable basis in the United
Kingdom.

The
Architects (Recognition of European Qualifications etc and Saving and
Transitional Provision) Regulations may be found on the ARRUK legislation page
(zx: ). An appraisal of the Regulations may be found at 23  ma Regas  23s2.

An early consequence:

At
the consultation stage for this amendment, AARUK expressed a concern about the
cost of

implementing the
requirements of the Directive within the United Kingdom. This impact was
described in the appraisal referred to immediately above which said: ... it is
likely that as a result of the amendment of 2008 there will be a commensurate
need to expand the human and other resources employed for giving effect to the
additional activity prescribed for the Architects Registration Board to
perform; and that the impact upon the annual fee which the Act enables the
Board to demand is unlikely to be favourable to architects in the United
Kingdom who, by application or retention, choose to become registrants on what,
by the amendment, has become “Part 1” of the Register.

This
prediction has clearly been borne out for in the autumn of 2008 the Board,
having decided to increase its human resources, advertised not only for a
Registration Manager to deal with, it is presumed, an expected increase in the
number of registrations, but also for a European Affairs Executive. AARUK
estimates that the increase in the cost to Part 1 registrants will be in excess
of £150k per annum while noting that in an Explanatory Memorandum given
to Parliament as legislature, at paragraph 8 ("Impact") it was stated
that there would be no additional cost to the Board, saying: "there are no
identifiable adverse impacts as a result of these Regulations".

No
mention was made there of the attendant costs set out in the Impact Statement
attached to the Explanatory Memorandum for S.I. No.2781, The European
Communities (Recognition of Professional Qualifications) Regulations 2007. Here
it is clearly stated, but only with respect to those engaged in providing
temporary services in the UK
and therefore being registered in Part 2 of the Register, that additional costs
were anticipated in the region of £60,000 (see page 15). However, it is
understood (November 2008) that since the amendment came into force, there has
been not one Part 2 registration.

See
next for an appraisal of the Regulations [23 ma Regas 23s2].

~~

21  ma Home     REGISTRATION

23  ma Regas  23s2       AARUK
appraisal of Amndt of Jun08 to the Act of 1997

TITLE: Architects Act
1997: June 2008 amendment under the European Communities Act 1972, an appraisal

ARTICLE:

The
Architects Act has been amended by a statutory instrument made by a minister of
the United Kingdom
government under the European Communities Act 1972. This was the Architects
(Recognition of European Qualifications etc and Saving and Transitional
Provision) Regulations 2008,which came into force on 20 June 2008. An
Explanatory Memorandum was issued with the Regulations and a fuller Explanatory
Memorandum presented to Parliament.

The
Architects Act 1997 had resulted from the policy of allowing certain
restrictions to apply (for well over 60 years, in the United Kingdom) to the
use of the simple word “architect” in connection with a statutory
Register of Architects operated under Westminster primary legislation by which
the executant body was renamed as the Architects Registration Board from 1997
(previously the Architects’ Registration Council of the United Kingdom:
ARCUK ).

The
amendment (under the European Communities Act 1972) has introduced pages of
complicated text to a piece of legislation which was otherwise tolerably trim,
neat and comprehensible in its consolidated form in the 1997 Act. But the
amendment has been made pursuant to a European Directive made in 2005 and the
treaty obligations binding upon the United Kingdom and other states of
the European Union, and in that respect an amendment under the European
Directive was inevitable.

“Non-Departmental
Public Body“. The Architects Registration Board (ARB) has been assigned
the function of the “competent authority” which has to be
designated by every European Union state. It has been classed as a
“Non-Departmental Public Body” in the language being used by
government departments. The majority of the Board is appointed by one such
government department under the provisions of the Architects Act 1997.

“Impact“.
In connection with architects registration in the United Kingdom it is likely
that as a result of the amendment of 2008 there will be a commensurate need to
expand the human and other resources employed for giving effect to the
additional activity prescribed for the Architects Registration Board [ARB] to
perform; and that the impact upon the annual fee which the Act enables the
Board to demand is unlikely to be favourable to architects in the United
Kingdom who, by application or retention, choose to become registrants on what,
by the amendment, has become “Part 1” of the Register.

The
general effect on teaching and practice, or on the inter-disciplinary process
in the service of the built environment, is uncertain. Independent observers
may consider (as had the author of the Warne Report, concerning the reform of
architects registration which preceded the amending legislation of 1996) that
the public is best served by means of statutory regulations of universal
application (such as Building Regulations) on the one hand and arrangements
free from the taint of monopoly on the other.

See
also:

[36  ma Reged]  Case Study 3 Part 1: Does the Act comply
with EU requirements? (November 2008).

[36  ma Reged 36s1  zx:] Architects Act 1997 as amended from
June 2008, unofficial version.

~~

#

21  ma Home     REGISTRATION

24  ma Regas    Parliamentary
replies: cost of retention (Oct, Nov 2008)

TITLE: Parliamentary
Written Replies

NOTE:

On
14 October 2008, Mr Iain Wright MP replying on behalf of the Secretary of State
for Communities and Local Government to written questions made by Mr Edward
Vaizey MP to to the Secretary of State for Culture, Media and Sport, gave
details [link from AARUK website: includes Letter from Karen Holmes
dated 13 October 2008]of the increase in the cost to those on the register
of the Architects Registration Board.
This information has shown that the increase in cost in the 10 years of
the Board, in real terms, has been 90%.
Over the same period, information [link from AARUK website]
published by the Board [ARB] shows the number of registered architects to have
increased by a mere 5%.

On
4 November 2008, in a written answer to Ms Julia Goldworthy MP the Secretary of
State for Communities and Local Government, the Rt Hon Margaret Beckett MP, confirmed
[link from AARUK website] that the Architects Registration Board [ARB] is
funded by the registration fees paid annually by architects in the UK.

See
also: Case Study 3 (EU)………

~~

21  ma Home     REGISTRATION

25  ma Regas    Case
Study 3 (EU) Part 2: Conflicts of interest: s.4(2A) (10 Feb 2009); SI 2008 No.
1331

TITLE: Case Study 3, Part
2: Conflicts of interest: s.4(2A) (10 Feb 2009); SI 2008 No. 1331

NOTE:

It
is likely that few, whether architects or others, will have paid much attention
to subsection (2A) which was inserted in section 4 of the Architects Act 1997
by the departmental Regulation S.I. 2008 No. 1331 : The Architects (Recognition
of European Qualifications etc and Saving and Transitional Provision)
Regulations 2008.

Ÿ
Had the
officials, consultees or others who were party to the drafting been fully aware
of the conflict with the public interest (which, to some extent, includes what
is called the "consumer" interest)?

Ÿ
Would
legislators have been alerted by the Explanatory Memorandum submitted to
Parliament?

Ÿ
Was it
appropriate to have mentioned (paragraph 4.8 of the Memorandum): "...it
would be undesirable for migrants to exploit this loophole..." ?

Ÿ
Has that
consideration drawn attention away from more important issues affecting the
statutory Register of Architects?

Ÿ
Were there
undeclared assumptions about present or future policy benefits for the
profession or for others?

A
critic could claim that the insertion of this 4(2A) has done nothing in the
public interest; that the persons most likely to be disadvantaged are those who
have qualified in this country and wish to carry on practice; and the only
persons likely to be advantaged are those who derive satisfaction from their
responsibilities as appointed members of the Board (who cannot themselves be
practising architects), or others who are in competition with architects whose
profession has been trammelled by what amounts to an ineffectual restrictive
practice which criminalises certain uses of an ordinary English word.

(For the Transposition Note
annexed to the Memorandum see page 9 of the Explanatory Memorandum.) [link from
AARUK website]

AUTHOR:

An AARUK contributor, 10
February 2009.

See
explanatory paper of 21 April 2009 25
[ma Regas  25s1]

For
sequel, see Case Study 3, Part 3 [25
ma Regas  25s2]

~~

#

21  ma Home     REGISTRATION

25  ma Regas    25s1     Explanatory paper of 21
April 2009 concerning the amendment of June 2008

TITLE: Architects Act
1997: Questions concerning the amendment of June 2008 (AARUK CS 3, Pt 2)

NOTE:

In
the course of communications about the validity of the amendment inserted in
the Architects

Act 1997 as s.4(2A), the
attention of the EU Internal Market directorate has been drawn to statements
inconsistent with the Act which have been repeated so often on official
websites and in official documents that persons appointed to the department
(Ministers as well as officials – there have been many changes) or who
have been appointed by the government as Board members, or by the Board as
officials, may have lost sight of the statutory provisions as enacted, as
explained in the following:

Ÿ
The restrictions
had been enacted in primary legislation by the Westminster Parliament in 1938
(“An Act to restrict the use of the name Architect to Registered
Architects and to extend the time within which practising architects may apply
for registration”), amending an originating enactment of 1931 (“An
Act to provide for the Registration of architects and for purposes connected
therewith”).

Ÿ
The current
provisions are contained in the Architects Act 1997, which was passed through Parliament
as a “consolidating” Act. The amendments which had been made in
previous legislation were listed in the Table of Derivations printed with
official copies of the Act.

Ÿ
This legislation
is the sole source for the existence and legitimacy of the Board, and for the
restriction on the use of the word “architect” for the benefit of
persons who, being qualified, have chosen, from year to year, to be entered in
the statutory Register of Architects which the Board has the duty to maintain and
publish. Registration is voluntary.

Ÿ
These enactments
have not ascribed to the registration body any of the functions for protecting
the public from, or in respect of, mishaps connected with building control,
planning, design, construction, site safety and so on which are the
responsibility of local authorities, or other prescribing or enforcing or
advisory bodies such as the Health and Safety Executive, whose ambits apply to
all persons, including any who are qualified for registration, whether in fact
they choose to be registered or not. Private law remedies, including those
specifically for “consumers”, in respect of breach of contract or
otherwise are equally available against architects whether registered or not...

New
subsection 2A [see AARUK website link to RIBApedia] which has been added to
section 4 of the Act states: "(2A) For the purposes of subsection (1), a
Directive-rights national shall be treated as having achieved a standard of
competence equivalent to that demonstrated by satisfying subsection (1)(a)
if—  (a) he produces evidence
of a description specified in section 4A(1) and he is either—  (i) lawfully established as an architect
in the relevant European State in which that evidence was issued, or (ii)
eligible to practise as an architect in that State, as confirmed by a competent
authority in that State; .."

In
August 2008, an architect in the United Kingdom wrote to the Director-General
of the Internal Market at the European Commission, making an inquiry in the
following terms: "It appears that the new provisions s.4(2A)(a)(i) and
s.4(2A)(a)(ii) are unlawfully restrictive. It seems that the right to
registration as an architect in the United Kingdom should depend only upon
certain specified qualifications being obtained and not upon “lawful
establishment as an architect” or to an “eligibility to
practise” in another State."

An
initial response was sent on 21 October 2008. It said: "In order to define
exactly the scope of the new dispositions and to check in which extent they are
in conformity with Directive 2005/36/EC and especially with its Annex VII2
concerning the documents and certificates which may be required in accordance
with Article 50(1) , our services took contact with the UK authorities and met
them on 22 September 2008. There are still a number of issues to be clarified
and we continue to discuss these questions with the UK authorities. We will keep you
informed about the results of these discussions. "

Inquirers
and policy-makers may be surprised by these apparent restrictions when it has
for so long been acknowledged that architecture is best served without
unnecessary barriers to the movement of its practitioners.     [This Note dated 21
April 2009]

See
also next: Enforceability of Architects Act in doubt (22 April 2009)

~~

#

21  ma Home     REGISTRATION

25  ma Regas    25s2     Case Study 3 (EU) Part
3: Enforceability of Architects Act in doubt (22 April 2009)

TITLE: Architects Act
1997: Enforceability of Architects Act in doubt (AARUK CS 3 Pt 3) 22 April 2009

NOTE:

Following
the architect’s inquiry (Case Study 3 Parts 1 and 2), a reply from the EU
Commission (see below) indicates a flaw in the Architects Act 1997 as altered
by the statutory regulation made in June 2008 by the UK Secretary of State
(DCLG) under the European Communities Act 1972. In this respect other
provisions of the Act must be vitiated, affecting registration (Part II) and
use of title “architect” (Part IV), thus putting at risk any
attendant staff or legal costs, levying of fees, and enforcement action by
prosecution or threat. The effect upon the indemnity insurance position of the
Architects Registration Board [ARB] may need to be considered, and there may be
questions about the responsibility of the Secretary of State and the
department.

Looking
at the evidence which has been made available, an independent commentator is
likely to conclude that before the Regulation was submitted to Parliament for
approval the department’s consultation draft of August 2007 was altered
with a view to frustrating the intent of the EC Directive. AARUK leaves others
to judge if that was so, by what criteria it could have been rightfully done,
and whether it could have been well advised.

Correspondence
between the department (DCLG) and the EU Commissioners and others (copies

of which have been disclosed
to the inquiring architect) reveals that the alteration in question resulted
from representations received from the Architects Registration Board [ARB] and
its former chairman, Mr Humphrey Lloyd QC, (among others) after the earlier consultation
draft had been made available by the department in August 2007. (For
AARUK’s comment at the consultation stage see website
link……...)

The
correspondence from the European Commission to the DCLG shows that the
Commission “takes the view that by introducing the section 4(2A)(a) of
the Architects Act 1997 requesting a certificate of eligibility or a proof of
legal establishment in the home Member State, requirements not foreseen by
Directive 2005/36/EC for the establishment of a migrant professional, the UK
authorities have transposed Directive 2005/36/EC in an incorrect manner”.

AARUK
notes with interest that this was stated in reply to a letter from the UK government

department (DCLG) dated 8
January 2009 which was headed:

“New Pilot Project
Case: 197/08/MARK – DCLG regulations concerning the

Internal Market Services
– Conformity to the Architects Regulations 2008”.

For doubts previously
expressed about the ARB Code of Conduct under Part III of the Act see:

RIBA
paper on the Status of the Architects Registration Board

Case
Study 1

Case
Study 2 .

[This Note dated 22 April
2009]

~~

Next AARUK main page title:
REGISTRATION-a education

#END OF SECTION REGISTRATION

31>REGISTRATION-a education

31  ma Home     REGISTRATION-a
education

32  ma Reged    Unequal
standard across Europe

33  ma Reged    Duty
to consult: prescribing qualifications

34  ma Reged    The
ARB's own examinations: circumvention

35  ma Reged    35s1     ze: Architectural
education in UK,
19c.-20c. (June 2007)

36  ma Reged    Case
Study 3 Part 1: Does the Act comply with EU requirements? (November 2008)

36  ma Reged    36s1     `zn: Architects Act
1997 as amended from June 2008, unofficial version

37  ma Reged  More on prescribing qualifications (15
May 2009)

37  ma Reged    37s1     Prescribing
qualifications: ARB vis-a- vis RIBA and EU (15 May 2009 )

31  ma Home     REGISTRATION-a
education

32  ma Reged    Unequal
standard across Europe

TITLE: An unequal
standard across Europe

NOTE:

The
Registrar is bound, under section 4 of the Architects Act, to register any
person who applies for registration if that person has "such
qualifications and has gained such practical experience as may be
prescribed".

An
alternative route to registration is to satisfy the board that an equivalent standard
of competence has been achieved.

The
standard of qualification is not equal for all candidates.  A matrix can be applied as follows:[The
AARUK website displays a matrix.]

The
disparity arose from the European Directive on Mutual Recognition of Qualifications
in Architecture 85/384/EC, now repealed. Article 4 of the main text of that
Directive had stated that the total length of education and training would
consist of a minimum of either four years of full-time studies at a university
or comparable educational establishment or at least six years of study at a
university or comparable educational establishment of which at least three must
be full time.

As
this was a minimum requirement there was nothing to stop a country applying
higher standards to those obtaining qualifications and experience within its
own jurisdiction.  However it is
widely held (and expressed in the report of the late Michael Highton to the
RIBA Council) that any challenge to this disparity is likely to succeed on the
grounds of irrationality.  The
report stated: "In our view it is only a matter of time before a UK
student, who has been denied registration on the grounds that he or she has not
passed the Part 3 examination, yet who has been educated in the UK and achieved
two years practical experience in the UK, successfully challenges such a
decision on the basis that it is irrational to require a UK based student to
possess a higher level of qualification and experience than is required of a
non-UK based student or architect. "

The
RIBA may wish to note that if, on challenge, ARB is required to reduce its
registration requirement to four years full-time study, there is no reason why
the RIBA should lower its entry standard.

See also: The ARB's own
examinations: circumvention (34  ma
Reged)

~~

31  ma Home     REGISTRATION-a
education

33  ma Reged    Duty
to consult: prescribing qualifications

TITLE: The duty to
consult

NOTE:

The
ARB's Prescription Procedures at Appendix 3 require applications from schools
of architecture to include "a report based on one or more visits by a body
which includes professionals from both architectural education and practice and
lay persons.  The report must state
whether all ARB's criteria have been met by those who have received the
qualification".  The RIBA is
the only organisation that can provide that requirement through its Visiting
Boards.

Inquirers
and policy-makers may therefore question the ARB's 2006 prescription of Nottingham Trent University's
BA(Hons) degree course in architecture.  The ARB states: "There is no
Visiting Board Report available for this institution", which is
unremarkable because the first intake of students in not expected before
September 2006.

A
further question may arise over Edinburgh
University's new
post-graduate Masters degree in Digital Media. Here it appears that the RIBA
were not consulted at all, even though this is a new course.  Such consultation is a requirement of
s.4(3) of the Architects Act, which requires that "Before prescribing ...
qualifications ... the Board shall consult the bodies representative of
architects which are incorporated by royal charter ..."

~~

31  ma Home     REGISTRATION-a
education

34  ma Reged    The
ARB's own examinations: circumvention

TITLE: The ARB's own
examinations: circumvention

NOTE:

For
those who are unable to apply for registration because they do not hold a
qualification prescribed by the Board and who do not have a recognised EEA
qualification, a route to registration is opened to them by section 4(1)(b) of
the Act which allows applicants to demonstrate a standard of competence
equivalent to that of a prescribed qualification and practical experience.

The
Board can require those applying to register by this means to demonstrate their
"standard of competence" by passing a prescribed examination in
architecture, a route that appears to be universally applied.  However, the only examination that is
currently available is the examination set by the Board itself.  This examination has been criticised
because the Board is not empowered to conduct examinations under the Act and
appears to do so only by straining the meaning of the Act.  Moreover, the examinations are expensive
and the results appear to be inconsistent when benchmarked.

It
has been suggested that the examination should revert to the RIBA which has a
wealth of knowledge on education standards that the Board cannot ever hope to
match.  In 2008 the Board apparently
took heed of this suggestion by inviting several institutions, including the
RIBA, to tender for providing examinations.  For reasons that have yet to be
explained, there was no unqualified tender and in consequence, none was
accepted.

In
the meantime, it appears that an application for membership of the Royal
Institute of the Architects of Ireland is possible, including where the
applicant is accredited by a course recognised by the professional body of a
non-EC state, subject to verification by the RIAI's Board of Architectural
Education and at the discretion of its Council. [ARRUK is grateful to the persons
who brought this to our attention and tried it out.]

Once
a member of the RIAI an architect is entitled to be registered in Part 1 of the
UK Register of Architects, provided the applicant is a "Directive-rights
national" (that is an EC Member State national).  All the architect must do is present a
Certificate of Associateship or Membership of the RIAI.  This route is permitted by the
provisions of Article 46 and Point 5.7.1 of Annex V of the EC Directive on
the Recognition of Professional Qualifications, brought into force in the
United Kingdom in June 2008 by the Architects Act as amended by the The
Architects (Recognition of European Qualifications etc and Saving and
Transitional Provision) Regulations 2008.  (Inquirers from the Republic of Ireland
may wish to note that it appears that the RAIA will not necessarily accept such
a certificate for the purposes of registration in the Republic
of Ireland if the Certificate was
issued in Ireland.

See
"an unequal standard across Europe"
[above 32  ma Reged].)

~~

31  ma Home     REGISTRATION-a
education

35  ma Reged    35s1     ze: Architectural
education in UK,
19c.-20c. (June 2007)

TITLE: Architectural
education in the United
Kingdom : Examinations, qualifications and
reasonable expectations

EXCERPT:

See AARUK website for the
whole article with on screen links, or as reproduced in the APPENDIX hereto.

[ INTRO: This article,
published on 2 June 2007 on a separate page, was submitted by a contributor for
the information of inquirers and policy-makers, particularly having regard to
the topics of eligibility for Membership of the RIBA, mutual recognition of
qualifications among EEA
States, and freedom to
practise as an architect worldwide. ]

ARTICLE:

After
nearly a century of endeavour and negotiation which had been led by the Royal
Institute of British Architects [RIBA], a statutory Board of Architectural
Education was formed under the Architects (Registration) Act, 1931. For the
purposes of constituting the Board of Architectural Education the Act included a
list of Schools of Architecture in the United Kingdom. The statutory Board
was abolished in the 1990s, and when the Architects Act 1997 repealed the 1931
Act the statutory list of Schools of Architecture went with it.

The
1931 Act had come to be passed at the end of a century of development in
educational provision and in the method of qualifying by examination. The 1997
Act was passed in the period after the United Kingdom had become one of the
Member States of the European Economic Community, later named the European
Union [EU], an organization which, among other things, has required Member
States to remove obstacles to the freedom of movement and establishment in
respect of professional practice, employment, trade and business within the
territories of the Union.

The
method of qualifying by passing an examination which the RIBA had recognized as
allowing exemption continued in the period when the 1931 Act was in force, and
remained available under the later legislation.

By
a further development, from 2007 a Chartered Member of the RIBA may apply for
the registration of a Chartered Practice in respect of a business providing
architectural services and comprising one or more Chartered Members meeting
criteria for, and operating in accordance with, a prescribed scheme…..

The
article then considered: Italy,
France, Great Britain and Dominions, Other European
Countries, United States,
and Mexico.
It mentioned that the largest school of architecture in England was that of the Architectural
Association (London) and the next that of Liverpool University, and explained the part
played by the RIBA:

“From its
foundation in 1835 the Royal Institute
of British Architects has
been the supreme controlling authority of the profession throughout the empire.
At no time, however, has the RIBA itself undertaken the teaching of
architecture. But by setting up, in the latter half of the last century [19c.],
a centralized system of examinations when no professional tests existed in the
country, it performed a notable service in raising the general level of
professional knowledge. Through its board of architectural education it has now
delegated to certain approved schools the task of qualifying candidates for
admission to the institute, only maintaining its own centralized examinations
for students not seeking entry through scholastic channels.”….

The
system continued after the statutory Board of Architectural Education had been
constituted, in connection with the provision in the Architects (Registration)
Act, 1931 making it the duty of the Board to recommend “the recognition
of any examinations in architecture the passing of which ought, in the opinion
of the Board, to qualify persons for registration” under the Act
(subsection 5(2)(a))…..

AUTHOR:

An AARUK contributor, 30 May
2007

~~

36  ma Reged    Case
Study 3 Part 1: Does the Act comply with EU requirements? (November 2008)

36  ma Reged    36s1     `zn: Architects Act
1997 as amended from June 2008, unofficial version

TITLE: Does the Act comply with EU requirements?
(November 2008): Case Study 3 Part 1

NOTE:

AARUK was informed (November
2008) that the European Commission was inquiring into a question about the
validity of section 4 of the Architects Act 1997 as amended from 20 June 2008,
having regard to the Internal Market requirement imposed on the UK Government
by the EU Directive on the mutual recognition of qualifications in architecture
(2005/36/EC).

For sequel see the Note of
10 February 2009 : Conflicts of interest: s.4(2A) and SI 2008 No.1331

[25 ma Regas Case Study 3
(EU) Part 2).

~~

#

37  ma Reged  Course validation or prescription of
qualifications? (26 May 2009)

37  ma Reged    37s1     ze: Letter to ARB 9
May 2009 re: Consultation 2009/01

TITLE: Course validation
or prescription of qualifications? (26 May 2009)

EXCERPT:

See AARUK website for the
whole letter, or the abridgment in the APPENDIX hereto.

An
AARUK contributor, in a letter to Board Members on 9 May 2009, arguing that the
current practice of the Board is to validate architectural courses rather than
(as permitted by the Act) to prescribe qualifications, has suggested that the
whole of the Board's involvement with "learning outcomes" should be
unravelled so that the Board can deliver its statutory duty to prescribe
qualifications to the equivalent level of RIBA Part II, and no higher.

Ÿ
The letter began by stating its purpose as:

"to demonstrate that the Board’s governing statute, the Architects Act, permits the
Board under section 4(1)(a) to engage in no activity beyond prescribing the
qualification –whereas the Criteria to which you [the ARB] refer either in their present form or in any revised
version are clearly intended to provide the means of validating courses rather
than prescribing qualifications. The Board has a statutory duty to do no more
than to prescribe qualifications and it follows that these Criteria are
extraneous to the purposes of the Act."

Ÿ
and ended by
stating:

"The
autonomous “prescription” process of the Arb is unnecessary, never once
demonstrated by evidence as being necessary, and all the while imposing a  wholly unnecessary cost on registrants.

Not
even the cost of this consultation process can be justified, for there is no
statutory justification for the Criteria which the Board now seeks to revise.
The

only proper course of action for the Board is to abandon its present
course

validation process, which is unauthorised, and deliver its statutory
duty to

prescribe qualifications to the equivalent level of RIBA Part II, and no
higher."....

Next AARUK main page title:
REGISTRATION-b competence to practise

#END OF SECTION
REGISTRATION-a education

41>REGISTRATION-b
competence to practise

41  ma Home     REGISTRATION-b
competence to practise

42  ma Regmp   When
the ARB may take CPD into account

42  ma Regmp  42s1      Note
on Position of persons already on the Register

42  ma Regmp  42s2      ze:
Note on Proposed amendment to Rule 20

41  ma Home     REGISTRATION-b
competence to practise

42  ma Regmp   When
the ARB may take CPD into account

TITLE: Competence to
practise : when the ARB may take CPD into account

INTRO:

Attached
is a paper on section 9 of the Architects Act where it is suggested that if the
board prescribes the amount of recent practical experience to be gained, and
that amount is gained, then the board may not make further inquiry concerning competence
to practise [42  ma
Regmp  42s1].

On
11 May 2006 the Board nevertheless proposed an amendment to its General Rules,
Rule 20, which appears to express the Board's current expectations regarding
maintenance of competence rather than an intent to put the requirements of
section 9 into effect. A second paper  [42
ma Regmp  42s2] on the
proposed amendment explains where this rule change contradicts the Act and
makes suggestions for correcting and improving the proposal.

~~

41  ma Home     REGISTRATION-b
competence to practise

42  ma Regmp  42s1      Note
on Position of persons already on the Register

TITLE: Competence to
practise - position of persons already on the Register

NOTE:

Relevant
sections of the Act are: Section 8.(1): “The Board may require a
registered person to pay a retention fee of a prescribed amount if he wishes
his name to be retained in the Register in any calendar year after that in
which it was entered“; and Section 9(1): “Where the Board is not
satisfied that a person who … (b) wishes his name to be retained …
in the Register under section 8 has gained such recent practical experience as
the Board may prescribe, his name … shall be removed from it, unless he
satisfies the Board of his competence to practise.”

General
Rules made by the Board [ARB]: Under the heading “Re-entry to the
Register" Rule 20 states "Any person who falls within the categories
described in Section 9(1)(a), (b) or (c) who has not been engaged in the
practice of architecture for a continuous period of two years immediately prior
to the date of application may be required by the Board to satisfy them of his
competence to practise."

1.
Under the present rules a registered person who is engaged in “the
practice of architecture” for the prescribed period is entitled to
continue to be registered. It seems that under Part II of the Act the Board
cannot require anything more of that person. (However under Part III, a high
degree of incompetence viz. “serious professional incompetence” on
the part of a registered person is subject to disciplinary order by the
Professional Conduct Committee of the Board.)

2.
Section 9 does not oblige the Board to be active in enquiring of
registrants whether or not they have had the prescribed recent practical
experience, rather, it enables it to be active in certain circumstances. These
include a person wishing his/her name to be retained in the register. It would
be hard to argue that the Board could not make it a rule that registered persons
state whether or not they have the recent
practical experience it has prescribed.

3.
Whether or not the Board could make a rule for monitoring recent
practical experience, it is open to the Board to expand rule 20. The more
demanding and specific the prescription of recent practical experience is, the
fewer the number of registrants that will have had that experience, and the
greater the residue of registrants who may be required to satisfy the Board of
their competence to practise in other ways.

4.
In formulating its policy vis- à-vis the ARB the RIBA will wish
to take into account that the Board’s power under section 9 is twofold:
the power to prescribe recent practical experience, and the power to require a
registrant to satisfy the Board of his or her competence to practise. The
second is contingent and separate from the first. Furthermore the two are
different in scope. They should not be confused.

~~

#

41  ma Home     REGISTRATION-b
competence to practise

42  ma Regmp  42s2      ze:
Note on Proposed amendment to Rule 20 (May 2006)

TITLE: Competence to
practise - proposed amendment to Rule 20 (May 2006)

EXCERPT:

See AARUK website for the
whole article with on screen links, or as reproduced in the APPENDIX hereto.

In its announcement (23/05/2006) of the proposed amendment to rule 20 of
the Board’s General Rules, the ARB invites comments on its
proposals.  What follows draws
attention to aspects of the rule which are defective and calls into question
its validity as a rule made under section 23 of the Act.

The announcement was made following a Report to the Board by the
Prescription Committee on the subject of ‘maintenance of
competence’ in which the proposed rule change is substantially the same
as that now published. The Report provides no analysis of section 9 and
suggests that the “Board’s current expectations regarding
maintenance of competence” were uppermost in the author’s mind
rather than what section 9 actually states. If a rule is made under section 23
of the Act it will be for carrying out or facilitating the purposes of the Act,
in this instance the purpose of section 9 in the context of the Act as a
whole….

~~

Next AARUK main page title:
PROFESSIONAL STANDARDS-a the code etc

#END OF SECTION REGISTRATION-b
competence to practise

51>PROFESSIONAL STANDARDS-a the code etc

51  ma Home     PROFESSIONAL
STANDARDS-a the code etc

52  ma Pfsacd   "Serious": sections 13 and 14 of the
Architects Act 1997

53  ma Pfsacd   The 2009 variations to the ARB Code (section 13)

54  ma Pfsacd  Code revision-plain English? (28 April
2009)

54  ma Pfsacd               54s1     The purpose of a code
under the Architects Act, s.13

51  ma Home     PROFESSIONAL
STANDARDS-a the code etc

52  ma Pfsacd   "Serious": sections 13 and 14 of the
Architects Act 1997

TITLE: Professional
Standards - the Code, etc

NOTE:

Under
section 13(1) of the Architects Act, the Board is required to issue a code
laying down standards of professional conduct and practice expected of
registered persons.

The
principal purpose of the code is set down at section 13(4)(b) of the Act where
it is stated that “[the code] shall be taken into account in any
proceedings against [a registered person] under section 14”.  It is only by extension that the code is
of general interest to those on the register and beyond as to what might and
what might not constitute ["serious"] unacceptable professional
conduct or "serious" professional incompetence [see Footnote].  The code is therefore concerned only
with those threshold or base-line professional values and should not attempt to
emulate the standards promulgated by the professional bodies.

The
Board is required to keep the code under review and to vary its provisions
whenever it considers it appropriate to do so; and before varying the code, it
is required to consult with such professional bodies and such other persons
"with an interest in architecture" as it considers appropriate.

Footnote: See ARB v
Vranicky, 16 March 2007 (unreported) where, reasoning that the standard applicable
to professional conduct should not differ from that applied to professional
incompetence, the court explained that, unless what had been done or not done
in an individual case could be regarded as a serious lapse, it would not be
appropriate to impose a disciplinary sanction. The judge added: “Only in
that way can proper weight be given to the adjective
‘unacceptable’”.

~~

51  ma Home     PROFESSIONAL
STANDARDS-a the code etc

53  ma Pfsacd   The 2009 variations to the ARB Code (section 13)

TITLE: The 2009
variations

NOTE:

In
December 2008, the Board [ARB] published a draft revision of the code
containing a significant change in style and a widening of the scope of the
standards it contains.  Of
particular note is that the Board acknowledges some European-wide codes and
other sources.  Interested persons
and policy makers may consider such material extraneous to a properly
formulated code, and may conclude that the variations to the code now under
consideration are excessive in jurisdiction and unnecessary.

In
the course of the consultation period (now closed) AARUK made no particular
recommendation but proposed that, in the public interest, the professional
bodies would do well to pay close attention to the scope and nature of the
variations as drafted having regard to the RIBA document The Status of the ARB
(link on AARUK website Home page, and see excerpt at o14 ma Home 14s2: the whole article is not reproduced in the APPENDIX
hereto}.

See also next: Code
revision-plain English? - The purpose of a code under the Architects Act, s.13
(28 April 2009) [54 ma Pfsacd 54s1].

~~

#

51  ma Home     PROFESSIONAL STANDARDS-a the code etc

54  ma Pfsacd  Code revision-plain English? (28 April
2009)

54  ma Pfsacd               54s1     The purpose of a code
under the Architects Act, s.13

54  ma Pfsacd               54s2     Scanned document: ARCUK
Standard of Conduct 17 June 1981

TITLE: Code revision -
plain English? - The purpose of a code under the Architects Act, s.13

[NOTE: The Board
as newly elected and appointed will be responsible for the code revision which
had been put out for consultation in 2008.]

ARTICLE:

...a Note from an independent observer (28
April 2009)

It
might have been thought that the code which Part III of the Act requires the
Architects

Registration Board [ARB] to issue should be of interest to none
but the relatively few who are affected

and who lack other reliable means of knowing or being informed
about “standards of professional

conduct and practice expected of registered persons” within
the meaning of the Act. It ought to

be made available as a helpfully informative document: concise,
accurate and in a style fitted to

its purpose; descriptive rather than prescriptive.    This few is likely to include some
of the following:

• post-graduate
students intending to practise in this country;

• practitioners from
abroad who are not already conversant with the professional ethics and

business practices of this
country;

• practitioners in
kindred professions and persons in the parts of the building industry

connected with architectural
work (including work for public buildings, industrial premises,

property development,
housing, shopfitting and interior design);

• those responsible to
their employers or principals for procuring architectural services (such

as public officials, or
directors, managers or executives of corporate or other institutions or

businesses, those who are
business proprietors or property owners in their own right, and

statutory
“consumers” to whom consumer protection legislation applies);

• legislators; and

• specialist or
general interest commentators, editors, feature writers, journalists and
reporters.

But
experience in the years from 1997 has shown that the Board [ARB] and its
Investigations Committee and Professional Conduct Committee seem to have acted
sometimes as if they were entitled to

use the code as a means, aid or basis for inducing, threatening,
defaming, and imposing penalties

upon registered persons, regardless of reason, common sense or
simple justice. (Inter alia,
see

AARUK Case Studies 1 and 2, passim.)

Interest
in the code must therefore extend beyond the few more directly affected to
those with

wider social concerns.

Inquirers
and policy makers may usefully consider whether the manner in which the present
code

is expressed and presented compares well or badly with an earlier
“code” which had been issued

before the Registration Board replaced the Registration Council.
The earlier document may be

taken as a model of plain English and fitness for its purpose
which others could do well to note.

If the current code falls short of such criteria then how much the
more does the consultation draft

issued by the Board in 2008.

Much
of the earlier versions of the ARCUK document had become obsolete under other

legislation in connection with the regulatory restrictions
directed against what was referred to as

a “mandatory” fee scale for architectural professional
services. But the principal ethical concern

for a public profession such as the practice of architecture
continues to be about conflicts of

interest.

AUTHOR:

An AARUK contributor,
28 April 2009

For ARCUK Standard of
Conduct 17 June 1981 see AARUK website. [Scanned 54 ma Pfsacd 54s2]

~~

Next AARUK main page title:
PROFESSIONAL STANDARDS-b PII

#END OF SECTION PROFESSIONAL
STANDARDS-a the code etc

61>PROFESSIONAL
STANDARDS-b PII

61  ma Home     PROFESSIONAL
STANDARDS-b PII

62  ma Pfsbpii   Outside the statutory remit

62  ma Pfsbpii  62s3      Opinion
of David Blunt QC (19 Sept 2007)

61  ma Home     PROFESSIONAL
STANDARDS-b PII

62  ma Pfsbpii   Outside the statutory remit

TITLE: Outside the
statutory remit

ARTICLE:

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 [link from AARUK website] 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 [link from AARUK website], 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.

See under [71
ma Home] PROFESSIONAL STANDARDS--c discipline for the requirement
of providing evidence of insurance.

~~

61  ma Home     PROFESSIONAL
STANDARDS-b PII

62  ma Pfsbpii  62s3      ze:
Opinion of David Blunt QC (19 Sept 2007)

TITLE: Opinion of David
Blunt QC (19 Sept 2007): paragraph 45

EXCERPT:

See AARUK website  for the whole article with on screen
links, or as reproduced in the APPENDIX hereto.

“….45.
It seems to me that the terms of Section 13(4)(a) could only be justified in

circumstances in which
there was a breach of the Code but no actual prejudice.

Thus, for example, a
complaint by a client that he had discovered that a

registered person whom he
had retained did not have the requisite insurance

cover, even if true,
could not be taken to constitute unacceptable professional

conduct, if the client
had terminated the retainer before any loss was suffered

by himself or anyone
else. In the obverse case, where the client only

discovered the absence of
the requisite insurance cover when it was too late,

with the result that the
client was actually prejudiced, there would be a factor

which was additional to
the fact of the breach of the Code…..”

~~

Next AARUK main page title:
PROFESSIONAL STANDARDS-c discipline

#END OF SECTION PROFESSIONAL
STANDARDS-b PII

.

71>PROFESSIONAL
STANDARDS--c discipline

71  ma Home     PROFESSIONAL
STANDARDS--c discipline

72  ma Pfscdp   Judicial interpretation relating to Part III of the Act
(2 April 2007)

72  ma Pfscdp  72s5     High Court holds
"serious" in Part III of the Act means SERIOUS

73  ma Pfscdp  Discipline and questionable PCC
decisions (January 2006)

74  ma Pfscdp  Case Study 1  (PCC) (January 2006)

74  ma Pfscdp   74s1     [4A1]
ze: Explanatory introduction: Disciplinary proceedings 10/11 January 2006

74  ma Pfscdp   74s2     [4A2]
ze: An architect's eloquence

75  ma Pfscdp  Case Study 2 (PCC): 2007

76  ma Pfscdp  Case Study 2 (PCC): 2008, 2009

77  ma Pfscdp   Practitioners' Registration Service: Further amendment?
(19 August 2007)

77  ma Pfscdp  77s2     ze: Note on Part III of
the Architects Act and jactitation of power (19 Aug 2007)

71  ma Home     PROFESSIONAL
STANDARDS--c discipline

72  ma Pfscdp   Judicial interpretation relating to Part III of the Act
(2 April 2007)

TITLE: - Judicial
interpretation relating to Part III: the meaning of "standards",
"serious" and "unacceptable".

NOTE:

Sanctions
are available to the board under Part III of the Act against any person on the
register who is found guilty under section 15 of unacceptable professional
conduct or serious professional incompetence, or else has been convicted with a
criminal offence which has relevance to fitness to practise.

Although
a criminal conviction is an objective criterion, no statutory definition is
given that defines the level of professional conduct or incompetence that will
attract a sanction, judgment in the matter being given to the board's
Professional Conduct Committee.

The
PCC is constituted under the Act, Schedule 1 Part II, as amended.  The Committee includes members of the
board, both elected and appointed, as well as persons appointed by the board
and nominees of the President of the Law Society.  A bare quorum of the Committee meets for
a disciplinary hearing, comprising a nominee of the President of the Law
Society (invariably a solicitor), a person from the register and another not on
the register.  PCC members are paid
for their service.

In
2005 a case presented by the Board against an architect in private practice was
heard by the PCC and then by the High Court on appeal, when some authoritative
guidance on the meaning of the Act was given. See following article 72  ma Pfscdp  72s5.

~~

71  ma Home     PROFESSIONAL
STANDARDS--c discipline

72  ma Pfscdp  72s5      High
Court holds "serious" in Part III of the Act means SERIOUS

TITLE: High Court holds:
“Serious” in Part III of the Act means SERIOUS

ARTICLE:

The
High Court (Queen’s Bench Division, Administrative Court) has ruled on the
application of the common law concerning “standards” affecting
architects as registered persons.

This
was in a reasoned judgment on an appeal by an architect as the
“Appellant” against a decision of the PCC. The
“Respondent” was the Architects Registration Board, as the
statutory corporation which has legal responsibility for its Professional
Conduct Committee under the Architects Act 1997. The appeal had been heard in
open court on 15 January 2007. (AARUK is grateful to the Clerk of the
Board’s PCC for drawing attention to the case, soon after judgment was
delivered on 16 March 2007.)

The
architect had been acquitted by the PCC of a charge of “unacceptable
professional conduct” in connection with a contract with private clients
for professional services for improvements to a property in London which was their home. The architect
had arranged for these “minor” works to be carried out under
separate contracts between the clients and a general contractor and, for the
installation of certain glass roofing, a specialist contractor. As things turned
out, the execution of the works had admittedly been unsatisfactory for the
clients, with regard to time, workmanship, and exposure of the property to the
winter weather, which, for a while, had affected the habitability of the house;
and the question for the Court was whether to overrule a decision of the PCC
about the degree of responsibility of the architect for any of that, having
regard to the professional services which the architect had undertaken to
perform for the clients and the guidance on professional competence which had
been issued by the Board.

The
written judgment was set out in 34 paragraphs. Parts of it which are of general
interest, as distinct from the details of the particular case, include:

Paragraph
3 – Rehearing and findings of fact: An appeal to the High Court under
section 22 of the Act is “at large” and not limited to errors of
law. It falls within Rule 52.11 of the Civil Procedure Rules as varied by
paragraph 22.3 of the Practice Direction to CPR 52.

The
judge explained that this put such an appeal “on a par with those for
other disciplinary Tribunals” such as the General Medical Council; and
therefore “while it is to be a rehearing, in practice the Court will
normally rely on the verbatim transcript of the hearing and no evidence will be
called”.

He
added that the Court would be able to interfere with findings of fact if the
Court were persuaded that such findings had not been justified by the evidence
because they exceeded the “ambit within which reasonable disagreement
about the conclusion to be drawn from the evidence is possible”.

Paragraph
4 – Standards: Concerning setting the standards of professional conduct,
the judge explained that the Court will not simply bow to the decision of the
PCC; but, for example, in respect of professional competence the Court will be
“very cautious” in differing from the evaluation made by the PCC.

Paragraph
8 – “Serious” incompetence and “unacceptable”
conduct: The judge noted that the Act “distinguishes between serious
professional incompetence and unacceptable professional conduct” and,
reasoning that the standard applicable should not differ, explained that,
unless what had been done or not done in an individual case could be regarded
as a serious lapse, it would not be appropriate to impose a disciplinary
sanction. He added: “Only in that way can proper weight be given to the
adjective unacceptable”.

~~

71  ma Home     PROFESSIONAL
STANDARDS--c discipline

74  ma Pfscdp  Case Study 1  (PCC) (January 2006)

74  ma Pfscdp   74s1     [4A1]
ze: Explanatory introduction: Disciplinary proceedings 10/11 Jan 06

74  ma Pfscdp   74s1s1  4A1a     Notice of Application
(by architects J-- L-- and  R-- L--)
to Quash

74  ma Pfscdp   74s1s2  4A1b    Decision of PCC 11 January
2006, with links to Application

TITLE: Explanatory
introduction: Disciplinary proceedings 10/11 January 2006

EXCERPT:

See AARUK website  for the whole article with on screen
links, [or as reproduced in the APPENDIX hereto.]

AARUK
invites inquirers and policy-makers to consider the disciplinary proceedings
pursued by the ARB in 2005/6 against two entirely blameless architects who had
decided not to complete the PII compliance statement which the Board [ARB]
claims to be entitled to “require” for the purposes of Standard 8.

1
In these two cases the basic issue was: Whether the single fact that an
architect who has informed the Board of his decision not to complete the
Board’s PII compliance statement can be treated as “unacceptable
professional conduct” in the practice of architecture?

(The
Act makes clear that conduct which has no material relevance to a
person’s fitness to practise as an architect can only be subject to
disciplinary proceedings where the architect has been convicted of a criminal
offence. )

2
The architects (R—L— and J—L—) had not “ticked
the box”, and had informed the ARB that they were under no duty to do
this and had chosen not to. There was nothing else that the Board could allege
about complying with Standard 8 or any other part of the Code, and there was no
third party complaint of any kind. It is self-evident that “ticking the
box” is not a matter of “professional conduct” in the
practice of architecture, nor can an architect’s choice not to
“tick the box” be “unacceptable” professional conduct,
irksome though it may be felt by the Board. Once that had become clear to the
members of the Committee, they could not allow either of these two cases to
proceed, and a decision to quash the proceedings would be inevitable....

.....

6
Their “Application to Quash” (Nov/Dec 2005) contains much useful information
of general interest about the ARB. Its narrative accounts for something of the
difficulties that have arisen from the skewing of the registration body’s
activities under the new regime, from the time when the Board (ARB) took over
from the Council (ARCUK) in 1997, and it points to flaws in the legal advice
which the ARB has been claiming to rely on. The architects have made it
available to inquirers through this website. It can make uncomfortable reading
for anyone who prefers to leave injustices lying in expedient obscurity.

.....

The
following is based on an extract from some Explanatory remarks by one who was
present at the hearing of the PRELIMINARY APPLICATION FOR THE PROCEEDINGS TO BE
QUASHED on 10th January, and who had also been present at the preliminary
hearing on 5th October 2005 when one of four earlier preliminary applications
had been heard.

Two Essential facts:

In
making their Application to Quash the two Architects were claiming the
Professional Conduct Committee’s protection in respect of what the
Architects considered to be cause for complaint against the Board.

They
considered that it was essential that the Professional Conduct Committee was
fully conscious of two facts; and that once these had been understood, little
would need to be added to realise that the proceedings should never have got so
far, and should be stopped before going further.

The
first of these two facts was that there was no third party complaint of any
kind. The proceedings were solely the product of the Board’s internal
administrative arrangements, which had been operated by the Registrar and
certain members of the Board, acting as the Board’s Investigation
Committee.

The
second fact is evident on reading the Architects Act 1997 itself. It is this:
the Act assigns to the Board certain duties towards architects, but the Act
puts on architects no duties to the Board. It follows that any rules made by
the Board under the Act must be consistent with that fact.

Any doubt about that can
be demonstrated by going through the Act section by section, but uncluttered by
any pre-conceptions induced by any explanatory material originating from the
Board itself, such as Annual Reports or other publication.

In Summary:

1.
Not even registered persons owe to the Board any obligation concerning
professional conduct; and in particular, registered persons owe no duty to the
Board in respect of anything in the Code issued by the Board under section 13
of the Architects Act 1997. To claim otherwise would be a result of conceptual
confusion or a misreading of the Act.

2.
Apart from officers, employees and agents of the Board, the Act creates no
duties or obligations towards the Board which fall on any one else at all.

3.
Section 3(4) states: “The Board shall publish the current version of the
Register annually...” other provisions of Part II of the Act prescribe
how the Register shall be kept up to date, and who shall be entitled to be
registered; other provisions of Parts II and III prescribe for the Board the
circumstances, events or conditions when a person’s name shall be removed
from the Register; and other provisions prescribe for the Board certain
ancillary, or derivative and secondary, duties in connection with the
Board’s primary responsibility for the maintenance and regular
publication of the Register of Architects.

4.
Nothing in the Act itself creates any obligation which an architect owes to the
Board.

5.
It is self-evident that the Board owes a duty of care to registered persons
first, to see that they are duly registered, and secondly, not to subject them
to any demands or threats connected with registration which are not expressly
within the Act.

The two architects
issued a brief statement explaining their position: ...

“We
know that others agree with us that the proceedings have been unacceptable and
inexcusable. We are willing to receive the apology which is due to us from the
ARB. But we reserve the right to give evidence to an independent and detailed
inquiry into the way in which the ARB contrives to misspend the registration
fees in this way.

“The
formal document setting out our objections included the following summary:

“‘(1) The
proceedings should be quashed in that the proceedings are, and are known to be:

a.
without any, or any sufficient, foundation in law or fact;

b.
vitiated by the Board and its Investigation Committee and Professional Conduct
Committee having a common interest in upholding the disputed validity of the
present Standard 8.

“‘(2)
Resistance to the Board’s request for information in the name of
“monitoring” or otherwise cannot be attributed to unacceptable
professional conduct on our part.

“‘(3) The
case against each of us depends upon an unsustainable proposition (as set out
in para.5 of the full document).

“‘(4) The ARB
policy in connection with Standard 8 cases has been skewed from the outset by
the propensity to disregard the Act, which has been shown by ARB Annual Reports
(mentioned in para.27 of the full document).

“‘(5) The
doubtful validity of the present proceedings was acknowledged more than a year
before the first preliminary hearing in the present proceedings (on 5 October
2005) in the Report from the Board Chairman (H. Lloyd) and the Registrar (R.
Vaughan) On “Promoting Greater Clarity and Flexibility for the Framework of
Architectural Regulation”, received by the Board in September 2004
(mentioned in paragraph 8 of the full document).

“‘(6) The
certainty or probability that we were entitled to resist the Board’s
[ARB] request for information, as we have done, has not been denied by an
authoritative ruling known to the law’”.

See AARUK website for:

Notice of Application to Quash, being an elision of a notice dated 28 November
2005 and its continuation on 19 December 2005; Decision of
the PCC, 11 January 2006, with links to relevant parts of the Notice.

~~

FROM SUB-TABLE: EXPANSION OF 74s1,
LISTING CONTENTS: 4A1

74s1     4A1      Explanatory
introduction: Disciplinary proceedings 10/11 January 2006

74s1s1  4A1a                 Notice
of Application (by architects J-- L-- and
R-- L--) to Quash

74s1s1  4A1a1                           NOTICE OF APPLICATION FOR PRELIMINARY RULINGS

74s1s1  4A1a1                           --Intro
and preamble

74s1s1  4A1a                 Notice
of Application (by architects J-- L-- and
R-- L--) to Quash

TITLE: Application to the [ARB] Professional Conduct
Committee on 28 November 2005 by J— L— and R— L—, both
chartered architects. [1 of 2 parts]

EXCERPT [FROM
Part 1]:

74s1s1  4A1a1                           NOTICE OF APPLICATION FOR PRELIMINARY RULINGS

74s1s1  4A1a1                           --Intro
and preamble

The
Committee is aware that we maintain that the accusations of “unacceptable
professional conduct”, which are being prosecuted against us under the
Board’s Standard 8 policy, are without foundation. The proceedings have
evidently been conducted according to a prearranged method of operation,
probably in accordance with legal advice from the Board’s solicitors or a
barrister instructed by them; but it is our conviction that the initiation and
conduct of the proceedings has been without statutory or other authority known
to the law....

...         One source of
prejudice is due to the Board’s claim to the effect that the Board can
safely rely on certain “legal advice” to secure decisions against
us, by persuading the Committee to hold that there is no basis for our rebuttal
of the Board’s accusations. Another is due to the Board’s claim to
the effect that the Board can safely rely on some status as a
“regulatory” authority to secure decisions against us, by
persuading the Committee to hold that there is no basis for our rebuttal of the
Board’s accusations.

There
is also the prejudicial character of the Board’s intentions shown by
“document 28” (Mr. Coleman’s letter to the prosecuting
solicitor), which the Board is claiming to withhold from production: see
previous correspondence as referred to in R— L— letter of
07.09.2005 to the Board Chairman H. Lloyd (RL Bundle Items 41 and 42) ; and
there are other sources of prejudice, and of conceptual confusion, which are
very apparent to us and to others who are well enough informed to see what is
happening, but which may be less obvious to the Committee members themselves.

A
third is due to the threat which results from the Board’s practice of
naming on the ARB website any person charged, including one who is in fact
innocent, and routinely publishing, in the form of the “Decision”,
statements about them, to which they have not consented and about which they
can have no practical certainty of redress. This happens almost immediately
after the hearing, remaining for a prolonged and indefinite period.

We
felt less than reassured by one of the Chairman’s remarks at the hearing
on the 5th October [2005]. When replying to part of our application, the
prosecuting solicitor, lacking anything more cogent to say, disparaged as merely
“bizarre” (by reference to a judge of the Crown Court, a wholly
different kind of tribunal) our concern about the Chairman being inclined to
make a finding or ruling which would follow or support decisions which he had
given in previous cases (knowing that they would be published on the ARB
website). That was both beside the point and discourteous on the part of the
prosecuting solicitor. But we must respectfully mention that the Chairman, in
giving the Committee’s decision, evidently could find no better reasoning
to give us and chose to use the same word when summarily dismissing that part
of our then application.

If
the cases proceed to a hearing we would need and seek formal assurances about
these concerns, and we now submit notice of a preliminary application to that
effect. Three of the four initial preliminary applications are outstanding. The
second of them was taken first, when we appeared before the Committee on 5th
October, and resulted in the adjournment for another member of the full Committee
to be selected to replace Mrs. Saunders. In the circumstances, the occasion for
the first application has passed, and the present Application is to be in place
of it....

...         It
may be that this Application is “unprecedented” in the literal
sense. But please note that we are not proposing that the Committee should make
any ruling which is outside its capacity, competence or jurisdiction. There is
extensive documentation which supports our case but, in order to bring the main
issue into focus, we have selected from this certain letters in the
Board’s possession mentioned in para 7. A copy of the document mentioned
in paragraph 11 (“The Status of the Architects Registration Board”)
has been in the possession of the Board from May/June 2003, when it was issued
by the RIBA (and officially communicated by the RIBA Chief Executive on behalf
of the President to the Board Chairman, who acknowledged receipt of it).

~~

FROM SUB-TABLE: EXPANSION OF 74s1,
LISTING CONTENTS: 4A1

74s1     4A1      Explanatory
introduction: Disciplinary proceedings 10/11

January 2006

74s1s1  4A1a                 Notice
of Application (by architects J-- L-- and
R-- L--) to Quash

74s1s1  4A1a1                           NOTICE
OF APPLICATION FOR PRELIMINARY RULINGS

74s1s1  4A1a1                           --Application
stated in three parts

TITLE: Application to the [ARB] Professional Conduct
Committee on 28 November 2005 by J— L— and R— L—, both
chartered architects. [2 of 2 parts]

EXCERPT [Part
2]:

See AARUK website  for the whole article with on screen
links, or as reproduced in the APPENDIX hereto.

74s1s1  4A1a1                           NOTICE
OF APPLICATION FOR PRELIMINARY RULINGS

74s1s1  4A1a1                           --Application
stated in three parts

The
purpose of the Application is to enable the Committee to proceed with disposing
of our two cases in a manner agreeable with the spirit of Rule 12 (of the PCC
Rules), and in a convenient, economical and manageable way. It is as follows:

NOTICE
OF APPLICATION, in three parts

Having regard to the
points and information set out after the third part, we apply to the
Professional Conduct Committee for a ruling in three parts to the following
effect:

THAT BEFORE THE HEARING
OF THE CHARGE IS COMMENCED, IT BE ACKNOWLEDGED, DECLARED AND DIRECTED BY THE
PCC AS FOLLOWS:...

...THIRD: That the PCC
effectively terminates the proceedings by declaring or directing before the
hearing of the charges are commenced-

-THAT the proceedings
against us be quashed and deemed to be annulled and THAT

(1) any statements made
in connection with the proceedings by or at the instance of the Investigation
Committee or Registrar to the effect that the accused were prima facie in
breach of the Code issued by the Board under Section 13 of the Architects Act
1997, or were prima facie chargeable under the Act for unacceptable
professional conduct, shall be deemed to be withdrawn;

(2) the Board makes no
record adverse to us the accused in this respect, and in particular makes no
entry of any kind on the Board’s website (save as mentioned below about
an agreed statement)

(3) no further
proceedings against the accused arising from the same facts, or arising from a
recurrence of similar facts in any subsequent year, shall be initiated;

(4) a copy of the
transcript of the proceedings before the Committee on 5th October and at the
adjourned (preliminary) hearing be formally communicated to the RIBA;

(5) if the Board and we
the accused so decide, an agreed statement may be published to the Press,
subject to the approval of the Committee.

~~

FROM SUB-TABLE: EXPANSION OF 74s1,
LISTING CONTENTS: 4A1

74s1     4A1      Explanatory
introduction: Disciplinary proceedings 10/11 January 2006

74s1s1  4A1a                 Notice
of Application (by architects J-- L-- and
R-- L--) to Quash

74s1s1  4A1a1                           NOTICE
OF APPLICATION FOR PRELIMINARY RULINGS

74s1s1  4A1a2                           Notice to quash: "The points and
information..." [74s1s1 4A1a1]

74s1s1  4A1a2         Para.No.     Documents etc mentioned
and/or cited

TITLE: Notice to quash:
points and information

EXCERPT:

See AARUK website  for the whole article with on screen
links, or as reproduced in the APPENDIX hereto.

The
points and information mentioned above are as follows:

PRINCIPAL POINTS, 1-15

1

Any proceedings before
this Committee, including proceedings in connection with Standard 8, can have
validity only under Part III of the Architects Act 1997 and not otherwise.

2

The present proceedings
are solely in connection with Standard 8 of the code issued by the Board under
Section 13 of the Act: see Investigation Committee Report (signed as
chairperson by Jane Rees, a member of the Board; formerly Acting Registrar,
from September 1999 - April 2000; previously, Registrar of the Insurance
Brokers Registration Council 1986-1998, created under the Insurance Brokers
(Registration) Act 1977 and dissolved under the Financial Services and Markets
Act 2000: this is further mentioned below).

3

We, namely R—
L— and J— L—, are in the position of persons who consider,
seriously and with reason, that our moral and material rights are threatened by
groundless accusations of “unacceptable professional conduct” which
the Board has made against us. Our resistance to the Board’s request for
information in the name of “monitoring” or otherwise cannot be
attributed to unacceptable professional conduct on our part. It is our
conviction that the initiation and conduct of the present proceedings has been
without statutory or other authority known to the law. We are entitled not to
have been pursued in this way by the Board or its Registrar / Chief Executive
on the Board’s behalf; and we apply to the Committee to terminate the
proceedings as set out above in the THIRD part of the Notice of Application.

4

We have made known to
those acting for the Board that the validity of the present proceedings under
the Architects Act 1997 is, and at all times from its inception has been,
contested by us as a matter of principle: see letters R— L— to H.
Lloyd, (RL bundle nos. 31, 41, 59, 85, 88) and J— L— to H. Lloyd
(JL bundle nos. 53, 54, 56, 62, 63, 69).

The
fact (if it is so) that a large majority of registered persons have voluntarily
completed the PII Compliance Certificate, as requested in connection with the
annual retention fee demand and Standard 8, cannot be relied on as validating
these proceedings against us; nor can the fact (if it is so) that some of those
who had not completed the certificate have been charged on the basis of their
admissions that they had in fact not complied with Standard 8 in other
respects.

5

The case against each of
us depends upon an unsustainable proposition. It is unsustainable because it
cannot credibly be maintained against us that it was within Parliament’s
intention when Section 13 of the governing Act was passed to enable provisions
of Part III of the Act to be used in this way (or that the Act as passed allows
it). When Parliament has an intention for something of this kind, different
provisions are enacted, such as the Board Chairman has proposed (see 8 below),
and as exemplified by the Insurance Brokers (Registration) Act 1977, or the
Financial Services and Markets Act 2000 mentioned at 2. above; and see section
47A of the Financial Services Act 1986 (quoted in R. v. SIB and IBRC, ex parte
IFA and London Insurance Brokers Mutual Ltd. QB Divisional Ct, [1995] 2 BCLC:)
see also Part II “Registration” of the Architects Act, section 9
“Competence to Practise”. (Note also 34. below)

6

The proposition mentioned
in 5 above is to the following effect: that a registered person shall be liable
to be deemed guilty by the PCC of “unacceptable professional
conduct” where there is in fact no evidence against him for such conduct
within the meaning of the governing Act, but only evidence

(a) that his name has
been put to the Investigation Committee by the Registrar / Chief Executive
Officer for no reason founded on fact or external complaint,

(b) that in so doing, the
Registrar / Chief Executive Officer acted not upon a complaint or evidence of
anything amounting to “unacceptable professional conduct”
unequivocally and undoubtedly within the meaning of the governing Act, but in
execution of a policy of the Board (which the Board has claimed to have instituted
for the purpose of enabling the Board itself to perform a
“monitoring” function), and

(c) that any alleged
“suspicion” about the persons accused was and remained wholly
unsubstantiated and supposititious at all stages, viz: (1) when the cases were
first referred by the Registrar / Chief Executive Officer (Mr. Robin Vaughan)
to the Investigation Committee (2) when the Investigation Committee
(Chairperson Ms Jane Rees) decided that the cases should be put to the
Professional Conduct Committee, (3) when the notices of charge were formulated
and we the accused were called upon to answer them, and (4) thereafter....

SUPPLEMENTAL POINTS AND
INFORMATION 16-34...

20

It is not open to the
Professional Conduct Committee to hold against us in these proceedings that the
doubt mentioned in 7. and 16. above is of no consequence or is removed, or
would be removed, by any of the following:

(aa) the fact that Dr.
Kelly, when first chairperson of the Board, made known her firm conviction that
it was or should be made beyond doubt: see 26.- 28. below;

(ab) the fact (if it is
so) that those who recommended her for appointment to the Board were of that
conviction;

(ac) the fact (if it is
so), that the government department which appointed her to the Board was or
later became of that conviction;

(ba) the fact (which was
presumably so) that when the present Standard 8 was issued the Board
(unanimously or by a majority) was of the conviction that it was
“arguably” maintainable (in a lawyer’s opinion),
ALTERNATIVELY, beyond doubt, or would be put beyond doubt in due course by the
fact of acquiescence on the part of most registered persons, on a case by case
basis against non-acquiescent persons, and eventually as an accomplished fact;

(bb) the fact (which
presumably was so) that the Board (by a majority) was of that conviction at the
time when the Registrar referred the cases to the Investigation Committee.

(bc) the fact (which
presumably was so) that the Investigation Committee (unanimously or by a
majority) was of that conviction (ALTERNATIVELY, considered themselves bound or
instructed under the policy of the Board) at the time when the Decision
authorising the prosecuting solicitor’s report was made.

(ca) the fact (if it is
so) that the Professional Conduct Committee (unanimously or by a majority) has
been of that conviction, or has acted upon the assumption that it was beyond
reasonable doubt or not in any doubt or had not been put in doubt,
ALTERNATIVELY, has considered the Committee to be bound, or instructed under
the policy of the Board, to act on that assumption.

27

In the present
proceedings decisions of the Registrar (Mr. Robin Vaughan) and of the
Investigation Committee (Ms. Jane Rees Chairperson) have been in pursuance of
the Board’s policy, in which the Board’s first chairperson, Dr.
Barbara Kelly, CBE, had been an active influence. For statements of Dr.
Kelly’s conviction about the Board as a “regulator” see
Annual Reports passim, e.g. for 1999 / 2000.

(a) “ Public
Relations........ It seems that the role of a statutory regulatory body is not
clearly understood ...... The fact is that the Architects Act 1997 gives us a
clear mandate to operate. The Board’s responsibility is to ensure that
that mandate is delivered. ARB is not a club you can join if you wish. It is a
regulatory body, with extensive responsibilities for registration, consumer
support, validation and assessment, and regulation”.

But it must respectfully
be objected, that in truth there is little of that to be found in the Act, or
by necessary inference. It has the character of bold invention. It may have
been more or less descriptive of a body such as the statutory Insurance Brokers
Registration Council (para 2 above), or of the Securities and Investments Board
under the Financial Services Act 1986, or of the Financial Services Authority
under the Financial Services and Markets Act 2000. It may have been influenced
by R. v. SIB and IBRC, ex parte IFA..... QB Div.Ct, [1995] 2 BCLC, mentioned in
34 (i) below.

In the Act of 2000
“regulatory” references are plentiful such as “The
Regulator”, the “regulatory objective”, “ Regulated
Activities “, “exempt regulated activities” (in the case of
members of “the professions”); but in the Architects Act 1997 such
references are conspicuous by their absence.

See also, the Law Society
website which, for solicitors, makes use of expressions such as
“Regulated by.....” (Similar usage can be found for barristers and
for commercial activities such as banking, insurance and money-lending: for
such occupations, the activity or function is usually restricted, not merely
the use of the title of the occupation, as in the case of the practice of the
profession of an architect).

In 1996/7 Parliament was
not constituting the ARB as a regulator of the profession or practice of
architecture: see Note on REGULATORY STATUS at 34. below. As
“regulator” of the use of the title, this is limited to making
rules as prescribed in s.20(4).

(b) “Looking to the
Future ........I recognize that the relationship between the profession and its
regulator can be an uncomfortable one, but if the ARB is to remain in the
forefront of regulation, we need advice, support and above all, understanding
from all our stakeholders.”

But it must respectfully
be objected that this seems to say that obedience to the Act takes second place
in Dr.Kelly’s estimation to fulfilling the ambition of being “at
the forefront of regulation” (in competition with unspecified rivals);
and it is unlikely that the previous career experience of either Ms Jane Rees,
Acting Registrar 1999-2000, or of Mr. Robin Vaughan (Registrar and Chief
Executive from 2000) had prepared them to be able to contribute to rectifying
such convictions of the Board chairwoman, who would have been involved in their
appointments.

28

And it must respectfully
be objected that the excerpts at 27(a) and (b) manifest a propensity to
mistaken overstatement and conceptual confusion, and that the resulting policy
in connection with Standard 8 cases, once initiated, has been and has continued
to be skewed accordingly. See also at 34(h) below concerning the Financial
Services Act 1986.

29

The Board is not (and
would not claim to be) a body competent to give an authoritative ruling on a
disputed point of law, whether or not one or more of the Committee is legally
qualified; nor is the Board’s Investigation Committee, nor is the
Board’s Professional Conduct Committee.

30

The Professional Conduct
Committee has a certain authority to make decisions which could affect a
person’s legal rights or liabilities, such that its proceedings would be
“judicial proceedings” within the meaning of the Copyright, Design
and Patents Act 1988, s.178 (but not necessarily otherwise); and it is claimed
that at a hearing the Committee sits as near as can be as if it were an
independent body comprised of unbiased and impartial members, and that the
chairman has been appointed to “sit judicially” (as mentioned by
Mr. Verdin: see transcript of hearing on 5th October 2005, page 19 line 6).

31

But it is understood that
the Committee’s “jurisdiction” (as with similar bodies) is
not (and is not claimed to be) to decide upon points of law as if it were a
court, made up of or presided over by a judge or judges appointed under the
Crown, for deciding appeals, or for awarding civil remedies in actions between
parties, or for imposing penalties for offences ranging from violent crime to
infringement of car-parking regulations. (This is with no disrespect to any
legally qualified chairman: the same would apply if the chairman had, like Lord
Woolf now in private practice, presided over the Common Law Courts, as Lord
Chief Justice.)...

~~

#

74s1     4A1      Explanatory
introduction: Disciplinary proceedings 10/11 January 2006

74s1s2  4A1b                 Decision
of PCC 11 January 2006 (for link words see 74s1s2 4A1b)

TITLE: Decision of the
Professional Conduct Committee, 11 January 2006.

EXCERPT:

See AARUK website  for the whole article with on screen
links, [or as reproduced in the APPENDIX hereto.]

Chairman: Mr Peter
Verdin

...Applications

3) That the proceedings
be quashed. This application is based on the power of
the Board to make regulations to promulgate standards and to monitor adherence to the regulations and
standards.

We have
concluded that the Board does have the powers which have been challenged. The Board’s
position is set out in paragraphs no. 1, 2, 3, 4 and 5 of a letter to Mr Ian Salisbury dated the 27 June
2002 written by Robin Vaughan and we adopt these paragraphs. They are a concise
summary of the powers under which the Board appear to have acted.

The
defendants have submitted that ‘ticking the box’ on ARB’s
Statement of Compliance is ‘wholly unrelated to the practice as an
architect.’ Practice as an architect does not just extend to dealing with
clients. It is reasonable for the Board to require architects to carry
insurance and it follows that the Board are entitled to make provision for
monitoring that requirement - standard 8.3 deals with this....

...Whether
there has been a complaint by a third party has no relevance. The PCC only hear
complaints from the Board. There is nothing in the Act which prevents the Board
from bringing a complaint of its own volition provided it has a proper
foundation.

We have been
quoted on opinion from RIBA (at paragraph 11 of the submission). We do not
accept this interpretation of Act. We have formed the view that the Act gives
the Board both the power to introduce a requirement for insurance and its
methods of monitoring that requirement....

...Whether
the Board is a regulator or not is a matter of semantics.
We are concerned with what powers and duties have been given to it by statute.
It is quite right for the
defendants to say that the Board can’t give an authoritative ruling on a
disputed point of law. That is one of the functions of this committee and that
is what we have done...

~~

71  ma Home     PROFESSIONAL
STANDARDS--c discipline

74  ma Pfscdp  Case Study 1  (PCC) (10/11 January 2006

74  ma Pfscdp   74s2     [4A2]
ze: An architect's eloquence: (Disciplinary proceedings Jan 2006)

74  ma Pfscdp   74s2s1  4A1a     Defences

74  ma Pfscdp   74s2s2  4A2b     Comment: PCC proves
itself to be ARB compliant

74  ma Pfscdp   74s2s3  4A2c     PCC decisions and
orders in respect of architects J-- L-- and  R-- L--

For the avoidance of defamation the decisions and sentences
unjustly given out by the PCC for publication in respect of the two architects
are not here reproduced.

74  ma Pfscdp   74s2s4  4A2d     Further comment: PCC proves
itself to be ARB compliant, Part 2

TITLE: An architect's eloquence: Defence in the case of ARB v
J— L—

EXCERPT:

See AARUK website for the
whole article with on screen links [ or as reproduced in the APPENDIX hereto.]

Those
who have become intimately acquainted with the manoeuvrings of ARB to assemble
a case against two blameless architects (mentioned elsewhere on the AARUK
website) and who have heard or read the dignified defence the architects have
made to the charges, will have been left in no doubt where the merits lie, and
how far short ARB's performance has been from acceptable standards. AARUK here
reproduces one of these defences (of J― L―) which can be
taken as standing for both.

NB.
This is an unofficial transcript. the official transcript of the proceedings is
available from Harry Counsell & Co.

Defence in
the case of ARB v J— L—

....        When
ARB first instigated its PII policies, I regarded it as a huge insult to the
whole profession and every member of it. Becoming an architect is not something
achieved lightly, and I and many others have devoted our lives to it, when in
all probability we could have made ourselves much more wealthy by using our
talents to pursue other careers. That it is an honourable profession is
reflected in the level of complaints against it from the public dealt with by
your committee, which I understand, is 2-3 per annum out of a register of
30,000 people. No problem obviously exists. Nevertheless, ARB has found it
necessary to invent one.

I
quote from my letter to Mr. Vaughan dated 29/10/2002 after the issue was first
raised:

“As
to my knowledge I have never been reported to ARCUK or ARB by anyone for any
reason in 26 years of registration, you can be assured that I take a very dim
view indeed of your threat to report me to the Investigation Committee for
failing to take an action which I believe is outside your remit as a
Registration body to request of me.” And

“I
have been in practice under my own name for 20 years, and believe that I have
sufficient knowledge and experience to determine for myself the levels of PII
appropriate for my practice, and I am satisfied that at present we do have such
adequate cover.

May
I respectfully suggest that you stop hounding properly qualified and
responsible architects on a technicality that comes within their own
jurisdiction, and start addressing the real problem which is that 85% of
Planning Applications in the UK are submitted by non-architects, and that a
substantial percentage of those Applicants probably believe that they are using
an architect for this service when in fact they are not. This would be a much
better use of scarce funds in order to meet your objective of “Protecting
the consumer and safeguarding the reputation of architects”.

I
feel exactly the same now, if not more so, three years after that letter was
written.

tart of the
policy, and ARB has acknowledged this by saying in the Investigations Committee
decision “The Committee is aware that [J― L―] challenges the
status of the Code of Practice and it accepts that failure to comply with the
Code of Conduct does not of itself constitute unacceptable professional conduct“

Despite
this, the charge that I face is “Unacceptable professional conduct”
Unfortunately, what constitutes this is nowhere clearly defined.

Clause
13 (4) of the Architects Act 1997 says

“Failure
by a registered person to comply with the provisions of the code–
“(a) shall not be taken of itself to constitute unacceptable professional
conduct or serious professional incompetence on his part;”

To
me the crux of this is the phrase “not be taken of itself ”. Quite
clearly that means that there must be some other event or circumstance that
occurs as a direct consequence of a lack of compliance with the code by the
architect. The most relevant consequence that should trigger disciplinary
proceedings is loss or damage to someone or some thing by virtue of an
architects act or omission. ...

...         However,
it is simply quite impossible to imagine any loss or expense that could
possibly be caused to anyone as a consequence of my failure to tick the box on
the Certificate of Compliance.

By
no stretch of the imagination can failure to tick the box be construed as
“Unacceptable professional Conduct”. The same applies to a failure
to respond to correspondence received from the Architects Registration Board,
which is the second spurious charge against me. There is nothing in the Code of
Conduct, or in any rules made by ARB that requires Architects to answer ARB
letters at all, never mind within a specified period. ....

See also:

Comment by an independent person who was present and witnessed the
proceedings.

..:-

ARB compliant: Part 1
Conduct Committee proves itself to be ARB Compliant

The
proceedings reported elsewhere on this website (see "Case Study" and
"An Architect's eloquence") were interesting in having proved beyond
reasonable doubt to the satisfaction of those who had been following the two
cases, not any failings on the part of the architects, but a prolonged series
of failings, great and small, on the part of the ARB itself.

The
Professional Conduct Committee's rulings at the preliminary hearing on 10/11
January 2006 will have pleased those whose opinion is that it is generally
expedient to let "regulation" prevail, where there is a conflict
between the rule of law on the one hand and the ambitions of persons claiming
to be in the business of regulating a profession on the other. ...

...         By
Thursday afternoon the outcome was known, after the architects had claimed that
the Committee should rule that the proceedings were a nullity. It then became
apparent to the architects themselves, and to those who had been carefully
following the proceedings from the sidelines, that the Committee, of two
solicitors and one architect, had failed to pay attention to the reasoned and
detailed objections which the two architects had put to the Committee at some length.
Instead, the Committee, at least by a majority, had again shown a propensity
simply to accept the unfounded assertions which had been made by the ARB's
solicitor.

A
week later (19/20 January) the cases of each of the two architects proceeded to
the hearing of the charges. By now, it was only to be expected that the
Committee would again pronounce against them in a way fully consistent with its
self-appointed task of upholding the ARB's pretensions, and would decide to
give effect to what the ARB had claimed it could "require" architects
to do.

Such
a decision would have been approved by anyone willing to promote the claims of
ARB to have extensive powers as a regulator of the profession; but would have
been deplored by anyone who believes that it is against the public interest to
let such a body exceed the powers actually allowed to it by Parliament for the
purpose of maintaining and publishing the Register of Architects.

And
so it has turned out.

~~

Further comment, illustrating how these decisions
cast a blight on the future prospect of fair hearings before the Professional
Conduct Committee.

..:-

ARB Compliant: Part 2

As
always AARUK invites inquirers and policy-makers to judge for themselves,
but only after taking the trouble to review the points at issue fully, and with
an uncluttered mind: see the official transcript from Harry Counsell & Co
of all the hearings: jointly on 5 October 2005 and on 10, 11 and 19 January
2006, and then separately on 19 January.

On
no account can self-serving statements published on the ARB website as the
Decisions of the PCC be relied on for disclosing the full facts and issues.

The
cases cast a blight on the future prospect of a fair hearing in any future
cases before the Committee, which should be reconstituted with persons
impeccably qualified to perform the job unencumbered by the errant doctrines
now prevailing. In the meantime, all hearings should be suspended or withdrawn.

The
unjust result of the two cases heard by the PCC was about as odd as could be
imagined. It has raised serious doubts about the ability of the Committee
(Chairman, solicitor Peter Verdin) to perform its allotted function in
accordance with norms of English law and morality as commonly understood and
applied (or presumably Scots law in Scottish cases). As the hours of successive
hearings went by, it had become apparent that the Conduct Committee would
flounder beyond its depth, like the Board itself and its Investigation
Committee, should they ever stray from the silted shallows of the Board’s
illusions and inventions into clearer waters.

At
the very end of the proceedings, the Chairman purported to make a distinction
between the two cases on grounds which had not been mentioned at any stage by
the Board’s solicitor or by the Committee: not before the hearings, not
at the preliminary hearings, not at the full hearing, not at the hearing in
mitigation. He made the distinction solely for the purpose of deciding that one
of the architects should suffer a fine of £1,000 after deciding that the
other would suffer no more than a reprimand.

It
would be no exaggeration to say that independent observers who had been
following the cases at successive hearings were dismayed that this final
injustice should have been wantonly inflicted by a solicitor nominated by the
President of the Law Society, with lasting injury to the architect, in the name
of the Architects Act 1997. It would have been bad enough coming from a
professional colleague or a commanding officer; from this seat of judgment it
was intolerable. A body acting in that way is worse than useless: it is
dangerous. ...

...Character

That being the state of affairs when the time came
for the Committee to consider its verdict, the outcome would depend upon the character
of the Committee’s statutory function: was it, like that of the Chief
Executive (and Registrar), to act as the Board’s administrative
enforcement agency; or was it to act judicially and protect accused persons
from injustice on the part of the Board? It should be noted that there was no
third party complaint whatsoever, but the Committee had quite failed to
appreciate the significance of this, probably because they had allowed
themselves to be misled by the Board’s solicitor on this as on other points.

The
rulings of the Committee, inconsistent though they were, showed that the
Committee, or at least the Chairman, wished it to be known and published that
when the two functions were in conflict, the Board could rest assured that the
enforcement agency function would prevail.

Denounced

But not content with that, the Committee went further
still. Knowing full well that the transcript of what he was saying would very
soon be published world wide on the ARB website, the Chairman denounced the
architects for having defended themselves against the Board’s
accusations, in respect of which they had substantially been acquitted; and
further denounced them for taking up the time and expense of the Board in
defending themselves against a set of distinct charges which the Committee had
allowed the Board to present in “interlinked” fashion. The
interlinking had been deliberately contrived by the Board in such a way that to
defend themselves on the substantial charge for which they were eventually acquitted,
they had to defend themselves on the third, and in the end be wrongly convicted
on grounds seemingly invented by the Committee for the occasion.

To
make matters worse, it was very obvious that at almost any stage of the
proceedings the Committee itself, if properly conducted, could have ensured
that the prolongation resulting from the Board’s method of setting out
and presenting the charges could have been avoided. But the result was that
these two blameless architects were blamed, without right of reply, both
for the error of the Board in putting a manifestly faulty set of charges and
pressing them to the bitter end, and for the Committee’s own
failure in proper and just case management.

~~

71  ma Home     PROFESSIONAL
STANDARDS--c discipline

77  ma Pfscdp   Practitioners' Registration Service: Further amendment?
(19 August 2007)

TITLE: Practitioners'
Registration Service: Further amendment?

INTRO:

Policy-makers
and others who have considered the information available on this website may
have become perplexed about the treatment of some architects by the Board [ARB]
and its Professional Conduct Committee [PCC], as described in Case Study 1 and
Case Study 2.

In
a brief Note on Part III of the Architects Act 1997 an AARUK contributor
explains that the present Act cannot properly be applied as if it enabled the
Board to originate a duty to inform the Board, such as it asserts in Code
Standard 8, or enabled the Board's Professional Conduct Committee to enforce
such a claim, irrespective of the validity of the Standard in other respects.

For
an outline of the steps by which the Board has progressively strayed from the
Act, in principle and in fact, see the Notice of Application to Quash in Case
Study 1.

Should
the legislation be further amended to save the Board from the charge of
jactitation of power?

See also Note on Part III of the Architects Act and
jactitation of power, next :77  ma
Pfscdp  77s2

71  ma Home     PROFESSIONAL
STANDARDS--c discipline

77  ma Pfscdp  77s2     ze: Note on Part III of
the Architects Act and jactitation of power (19 Aug 2007)

TITLE:  Note on Part III of the Architects Act
1997

EXCERPT:

See AARUK website  for the whole article with on screen
links, or as reproduced in the APPENDIX hereto.

Should the legislation be
further amended to save the Board from the charge of jactitation of power?

Conflict
of interest : As a result, residual questions of ethical conduct (for
professional practitioners) will usually be connected in some way with
preventing, or at least declaring, a conflict of interest adverse to the ideal
of the community of interest of the practitioner with those affected by the
product of their work: architecture as a social art. This is clearly to be
distinguished from a practitioner being bound by particular rules or regulations
which exist to prescribe the manner in which any of the authorised functions of
a registration body or other executive agency are to be performed; and also to
be distinguished from an arrangement for controlling the use of a trade name or
mark in connection with commercial franchising.

The
Board’s duties : In this context it is important to understand that
the immediate purpose of Part III as enacted has never been to enable the Board
(or any committee or officer of the Board) to enforce demands of any kind upon
registered persons concerning professional conduct. On the contrary, it imposes
a series of statutory duties upon the Board itself and its Professional Conduct
Committee, the overriding purpose of which is undeniably to protect accused
persons from misguided, spiteful or extravagant allegations which would result
in undeserved disciplinary orders or other injustice….

AUTHOR:

An AARUK contributor, 19
August 2007

~~

Next AARUK main page title:
USE OF TITLE

#END OF SECTION PROFESSIONAL
STANDARDS-c discipline

81>USE OF TITLE

81  ma Home     USE
OF TITLE

82  ma Usot      The
statutory restriction

83  ma Usot      Use
of title by companies

81  ma Home     USE
OF TITLE

82  ma Usot      The
statutory restriction

TITLE: The statutory
restriction

NOTE:

Under
section 20(1) of the Architects Act, a person may only practise or carry on
business under any name, style or title containing the word
"architect" if registered.
There is no restriction on its use in any other circumstance.  The words in the current Act reflect
those of the 1938 Architects Registration Act under which it was decided that
the use of the suffix "FRIBA" constituted an infringement.

The
fine for contravening section 20 is currently set at a maximum of
£2,500.  In 2004/5, the ARB
claims that it has processed approximately 500 "alleged title abuse
enquiries".  However, of those
500, it says it has successfully prosecuted only 5 cases.

~~

81  ma Home     USE
OF TITLE

83  ma Usot      Use
of title by companies

TITLE:  Use of title by companies

NOTE:

By
subsection 20(3) corporate bodies firms or partnerships can carry on business
under a name, style or title containing the word "architect" provided
that (in broad terms) the architectural business is run by a registered person.   However the Board may (by rules
made under subsection 20(4) – see General Rules, Rule 25) effectively
limit the application of sub-section 20(3) to those corporate bodies firms or
partnerships who have supplied information necessary for determining whether
the architectural business is run by a registered person.  (Presumably this is the reason why on
application to register a company with the word "architect" in the
title, Companies House directs applicants to the Architects Registration
Board.)

The
rule-making power under sub-section 20(4) appears to be limited to prescribing
particular information to be provided to the Board viz. "such information
necessary for determining whether [subsection 20(3)] applies".  The subsection makes no provision for
levying any fee.

(The restrictions on use of
title and the exemptions are considered in the AARUK paper The Architects Act
– Analysis with some Passing Remarks and questions for policy-makers
[3  ma ArcAct  3s1] , at " The general
burden".)

~~

#END OF SECTION USE OF TITLE

APPENDIX to May
2009 SEARCH ARCHIVE of AARUK notes and articles :

Parts
reproduced as EXCERPTS shown in bold.

o15 ma Home o15s1  ze: Point of view on statutory
registration (6 Nov2006) ) [= ols11]

TITLE: A point of view on
statutory registration: current options

ARTICLE: See AARUK
website  for the whole article with
on screen links.

A POINT OF VIEW ON
STATUTORY REGISTRATION: CURRENT OPTIONS

"Crucially,
professional control of the Register was taken away by the government’s
decision which was realised in the 1996/97 Act. This had not been generally
expected by those of the membership who before then had been in favour of
continuing protection of the title ‘architect’. The significance
and effect of the change is now becoming more widely understood."

(ARB Review Task Group Report, Appendix 2 - September 2004)

Introductory

By
the 1990s it was almost universally accepted that the time had come to bring
the statutory Architects' Registration Council [ARCUK] as it then was to an
end. Opinion within the profession was divided among those who held that
statutory registration should be discontinued altogether and those who held
that the registration body should be reconstituted.

In
the event the body was reconstituted as the Architects Registration Board
(1996/1997 Acts). But it was only after the event that many in the profession
came to appreciate the effect of the new requirement that the majority of the
Board should be non-architects and appointed by the government.

After nearly a decade of
experience of this regime, the profession and others could usefully consider
whether the time has indeed come for discontinuance of statutory registration.
It can be seen that the regime originating with the 1931 Act served a useful
purpose in its day and under very different conditions from the present. But it
is not apparent that the ARB regime serves any positively productive purpose
which could not be done as well or better by other means, and it must be
possible to ask: has the continuation of the Register under the 1997 Act, and
the protection of title that goes with it, been merely the final phase of an
administrative device that has now outlived its usefulness?

What
follows sets out a case for discontinuance of statutory registration. It was
available in more or less the same terms in 2004 at the time the RIBA Council's
Task Group on ARB was preparing the report quoted above (the Highton Report),
and a certain amount of the historical background set out below (including the
chronology of key events) was used in an appendix to the Group's Report.

The 1931 Regime

Statutory
registration has its origin within the architectural profession in the latter
part of the nineteenth century. It was then (as now) a matter of controversy.
However, by 1905 the RIBA had established a policy to secure satisfactory
training of architects by statutory means.

The basis of the policy (on
registration) had always been that the profession was governed by voluntary
associations of practising architects and that the profession would retain
control of registration. This was reflected in the composition of the
registration body (ARCUK) established by the 1931 Act. Shortly after, in the
book published on occasion of the Institute's centenary celebration in 1934
(note 1), in the concluding paragraphs of the chapter on statutory registration
(note 2), Harry Barnes F.R.I.B.A., Chairman of the Registration Committee,
wrote -

" ...... I do not
conceive the purpose of the Registration Act to be that of protecting the
Architectural profession. The interests of the Profession are of course
legitimate but are best served by the Architectural Associations in which some
80 per cent of those practising architecture are to be found.

The object of the
Registration Act is to ensure to the public that the architects they employ
possess capacity and character.

Under the purview of the
Board of Architectural Education no one will enjoy the title of
"Registered Architect" without giving evidence of his capacity, and
under that of the Discipline Committee no one will retain the title whose
character has been weighed in the balance and found wanting.

The Architects' Registration
Council of the United
Kingdom can never, therefore, on this view
be a rival of any Architectural Association and least of all of the Royal
Institute of British Architects.

The Architects' Registration
Council stands at the gateway of the realm of Architectural practice, but
within that realm the affairs of the Architect are best administered by those
voluntary Associations to which he has allied himself and over the actions of
which he has complete control."

After more than half a
century times have changed and a regime of quite another kind has been
installed.

To continue, or not to
continue ....

Under
present conditions there are essentially two options respecting registration -

1. Continuance of
the Register of Architects under the ARB regime, subject to amendment of the
Act to modify the Board's statutory powers.

2. Discontinuance
of the Register of Architects by repeal of the Act subject to interim and
transitional arrangements, and other measures (such as regarding education and
discipline).

The choice between
continuance and discontinuance is the fundamental issue. A number of subsidiary
issues, including the question of the loss of professional control of the
Register have been raised (see
Report). But even if the ills they indicate could be remedied, the
following analysis indicates that the fundamental issue would remain unresolved.

(1) Protection of the title
'architect'

In
relation to statutory protection of title, three aspects of the world in which
architects are practising invite examination. In summary -

· The design
quality of the built environment: this is essentially a cultural concern
which was and remains one of the principal reasons for the formation and
continuance of the RIBA as a chartered body. It has connotations not only for
this country but world wide. It is beyond the ambit of statutory protection of
title.

· The technical
sufficiency of buildings: the public interest is secured under Building
Regulations and other enactments. This too is beyond the statutory protection
of the title ‘architect’.

· The business of
architectural practice: contracts of engagement for professional services
are always between a business entity (whether individual, firm, partnership, or
company) and the client, and are governed by the general law, including
consumer protection legislation where applicable. Protection of the title
‘architect’ for business entities is of no practical relevance for
securing the performance of architectural services.

Can
it be maintained in the light of experience since the inception of the Register
under the 1931 Act, and more particularly under the ARB regime from 1997, that
protection of title serves useful purposes in respect of the aspects indicated
above (namely, promoting the quality of the built environment, or securing the
technical sufficiency of buildings or the performance of architectural
services)? If protection of the title ‘architect’ were discontinued
the adverse effect is likely to be nil.

(2) Due recognition for
Chartered Architects

Moreover,
there is an anomaly which discontinuance would remove. This is that a person
qualified and duly elected as a full chartered member of the RIBA is not
permitted to practise using the title 'Architect' or 'Chartered Architect'
(note 3). In fact, the duality of control over the style ‘Chartered
Architect’, which confers a professional status well recognised by the
general public, and the statutory control of the use of the common word
‘architect’ tends more to confusion than clarity.

Discontinuance
would allow a Chartered Architect to practise as such without further
registration, and would leave the Institute with its proper responsibility for
determining the qualifications recognised for conferring professional status to
practise as a Chartered Architect. The Institute exercises this responsibility
in furtherance of the objective: “the advancement of Architecture and the
promotion of the acquirement of the knowledge of the Arts and Sciences
connected therewith” (Charter Article 2.1).

(3) Registration without
statutory protection of title

If
there is a case for maintaining a register of persons qualified as architects
without the statutory protection of title what sort of body is best able to
prescribe and develop the qualifications? Surely that can only be a body
constituted mainly, if not exclusively, of members of the practising
profession.

Of
course the RIBA has such a register of Chartered Architects. Is there a need
for a register for persons who are qualified to become chartered architects but
have chosen not to? It should be noted that a certain proportion of persons who
are qualified to be chartered architects choose neither to be registered nor
join the Institute and yet may be engaged in performing architectural services.
In a free economy it must be for the chartered body to make itself sufficiently
attractive to maintain its membership and in any event persons who choose not
to be chartered members of the RIBA are free to form their own professional
association(s) with their own exclusive use of title.

(4) Registration related to
protected function: Building Regulations

There
may be a case for a registration regime in respect of part of the function of
building design, namely, for the purpose of the Building Act 1984. Registration
could be given to persons specifically qualified, whether in the field of
architecture, engineering, or surveying, that is, across all disciplines contributing
to the building process; and if that proposal were adopted all the chartered
bodies would be expected to collaborate in enabling this to be done. In the 21st
century such a thing is likely to be more useful than the Architects Act and a
better bargain both for the public at large (note 4) and for clients who, as
building owners and developers, are required to comply with statutory
provisions under the Building Act. Implementation of statutory registration in
this field would have the advantage of being able to draw on the existing law
as contained in the Building Act 1984 (note 5).

NOTES

(as numbered in text)

1. The Growth and Work of
the Royal Institute of British Architects edited by J.A.Gotch PPRIBA.

2. In this chapter the
author includes an informative account of the history of registration quoting
extensively an article published in the RIBA Journal of 8th August 1931 by
Charles MacArthur Butler, Secretary of the RIBA Registration Committee and
first Registrar to ARCUK.

3. This is especially anomalous
when it is considered that (a) full chartered membership of the Institute is
conditional on a person passing its examinations (or having obtained
qualifications giving exemption from those examinations), and (b) the
RIBA’s position as the principal body of practising architects in
deciding the attributes which are fitting and necessary in an individual who is
to be a member of the architects’ profession. When registration was
controlled by the profession and the RIBA had a dominant influence this anomaly
could be satisfactorily explained, but this is no longer the case.

4. e.g. in the saving of
some of the resources devoted to Building Control by Local Authorities.

5. See section 17 (approved
certifiers) and section 49 (approved inspectors). See also, section 7 of the Scotland
(Building) Act 2003.

APPENDIX

Statutory registration -
chronology of key events

1834 Royal Institute of
British Architects granted its Royal Charter.

1884 Society of
Architects formed, after a campaign by a group of ARIBA to be allowed to
vote on RIBA affairs had been resisted by FRIBA.

1887 Architects and
Engineers Registration Act Committee formed as an independent committee to
promote a bill for registration of architects, engineers and surveyors. The
bill was withdrawn after chief bodies representing engineers petitioned against
it.

1889&1891 Architects
Registration Bill Committee put forward bills for registration of
architects, which were strongly supported by the Society of Architects
but opposed by an independent group of prominent architects and artists.

1892 Papers published,
defining the profession of architecture:

Norman Shaw and T.G.Jackson
(eds.) “Architecture, A Profession or an Art”.

William H. White “The
Architect and his artists, An essay to assist the public in considering the
question is architecture a profession or an art”.

1902 Architects
Registration Bill Committee amalgamated with the Society of Architects
as a joint Registration Committee.

1905 RIBA Education
Policy was adopted for statutory powers to secure satisfactory training for
architects by way of registration of title, by and through the RIBA.

1908 RIBA Licentiate
Class formed, for architects who could show evidence of competence, without
exams. On closure in 1913, over 2000 had been accepted.

1924-1959 RIBA Standing
Registration Committee

1925 Amalgamation of RIBA
and Society of Architects: most of Soc. of Arch. Members transferred to
Licentiate class, which was reopened.

1927 RIBA Registration
Committee has draft bill introduced in Parliament, but opposed by IAAS and
FAS.

1931 Bill recast and enacted
as the Architects (Registration ) Act 1931, enabling the Register of
Architects to be established under a statutory body called the Architects
Registration Council of the United Kingdom (ARCUK). The Council was to be
made up of representatives of all architectural bodies in U.K. in
proportion to the numbers of their memberships on the Register, and
representatives from government departments and related professional bodies.
Under ARCUK, the RIBA system of exams etc. was accepted for registration. (The
provisions of the Act constituting the Board of Architectural Education were
repealed when ARCUK was reconstituted as ARB in 1996/7.)

1938 The Architects
Registration Act, 1938 changed the protected title from “Registered
Architect” to “Architect”.

1992 Government, in response
to a request from ARCUK, commissioned review of the Architects Registration
Acts by an independent assessor (John Warne).

1993 Warne Report
published - principal recommendation: abolition of protection of title
‘architect’ and disbanding of ARCUK. RIBA Council initially
supported this recommendation, but this was resisted by the RIBA membership. As
a result RIBA campaigned for the retention of protection of title with a ‘stream-lined’
registration board.

1996 Part III of Housing
Grants, Construction and Regeneration Act 1996, among other things,
reconstituted the registration body as the Architects Registration Board
(ARB).

1997 Architects Act 1997,
a consolidating act, brought together the provisions of Part III of the 1996
Act and previous registration legislation. The Architects Registration Board
then established with a majority of appointed lay members and a minority of
elected Architect members.

---------------------------------------------

(Minor
corrections 8 December 2006)

~~

#

1   ma Home     ARCHITECTS ACT

3   ma ArcAct    3s1       ze:
Analysis with some passing remarks... html with LINKS (14 Dec 2005)

TITLE: Architects Act
1997- Analysis, with some passing remarks and questions for policy-makers

ARTICLE: See AARUK
website  for the whole article with
on screen links.

SUMMARY:

Conciseness
- Originating act, 1931 - Amending act, 1996 - Consolidation act, 1997 - Note
1:  “Standard required”
to be ascertained in professional practice, not prescribed for ARB’s
convenience - Exposure to obloquy.

Scheme
of the Act - General burden, voluntary burdens - Statutory choices - Third
party burden on Schools - ARB’s supra-statutory claim against registered
architects. - Architecture, activities in the field of architecture,
architectural services - Mentioned but not defined - Note 3:  New specialisms - Commercial, iconic or
domestic values - Information for others - Relevance of “architect”
as restricted title.

Government
appointed majority - Note 4:
Momentum of ARB’s expansive tendency - Annual reports claiming ARB
exalted to status of regulatory authority for the profession with  “extensive powers”.

Standard
8 - ARB’s overbearing pretensions - PCC and natural justice.

The
Architects Act 1997 is fairly short as Acts go. That is partly due to its
conciseness, but

this quality makes it all
the more necessary to remember that the Act must be read as a whole to
ascertain the meaning and effect of its various parts. Care is needed not to
read into it what is not there

(whatever conventional
wisdom may have supposed or desired), and not to fail to notice what actually
is there. In particular, like many such Acts, it can be better understood by
looking at its beginning (Arrangement of Sections and long title) and its end
(derivations), as well as the operative part in between.

Its
long title is “An Act to consolidate the enactments relating to
architects”. The Table of Derivations printed at the end lists the
enactments which it consolidated; and Schedule 3 lists the originating and two
amending Acts which it repealed, namely:

the
Architects (Registration) Act 1931,

the
Architects Registration Act 1938 and

parts
of the Housing Grants, Construction and Regeneration Act 1996.

The
unbroken continuity of these enactments is shown by paragraph 19(2)(a) of
Schedule 2: “the Council” means the Architects’ Registration
Council of the United
Kingdom established under the 1931 Act,
which was renamed as the Board by section 118(1) of the 1996 Act.

The
changes made by the 1996 Act to the originating Act as amended can be deduced
from the Table of Derivations. This also shows that, for the purpose of the
consolidation, certain definitions were inserted in the “
Interpretation” section. These included one to make clear that where
there is a reference to “unacceptable professional conduct”, it has
the same meaning as it has in section 14 (not

vice versa). In section 14
(1) the phrase is expanded as: “conduct which falls short of the standard
required of a registered person”.

Note 1: That has no further
explanation, but the context shows clearly that the ARB

itself has been given
neither a legislative nor a discretionary power to impose

such a required standard for
professional conduct. It is not, for instance

something which the ARB has
prescribed or declared for its own administrative

purposes.

According
to this reading of the Act, the source of such a required standard

will be found elsewhere,
that is, it must be present in the field of

architecture and the supply
of architectural services by architects in practice;

and (for the purposes of
disciplinary proceedings) it must have been properly

identified to an accused
person before the Professional Conduct Committee can

hold the person liable to
any of the “disciplinary orders” listed in section

15(2), and to the obloquy of
being publicly denounced by that body (on the ARB

website) for having been
found guilty of “unacceptable professional conduct.

This is an instance where
the conciseness of the drafting could produce a

misunderstanding, and have a
less than satisfactory outcome in view of the

formidable penalties to
which registered persons are exposed at the mercy of the

ARB’s PCC, with no
practical means of redress against a misguided decision.

The
scheme of the consolidation Act of 1997 is identical with that of the

originating Act of 1931, as
amended. It is as follows:

It operates by imposing
(under Part IV) one kind of burden, backed by threat of penal sanction, on
persons carrying on business in the United Kingdom generally, but at the same
time giving to one particular group of persons a statutory right to choose
instead to submit to another kind of burden, and to another group of persons
the statutory right to choose to submit to a third kind of burden.

Here,
we describe the first as the “general burden”; the other two as the
“voluntary burdens”; and the freedom to choose the “statutory
choices”.

The general burden is a
prohibition imposed on all persons, firms, partnerships and bodies corporate
carrying on business in the United
Kingdom, including architects and Chartered
Architects. The prohibition is against practising or carrying on business under
the title of “architect”, with two exceptions, viz.:

1. In the case of an individual, s/he has opted for one of the voluntary
burdens and is registered or enrolled under the Act.

2. In the case of a business entity (body corporate, firm or
partnership) it has opted for the other of the voluntary burdens, in that its
business so far as it relates to architecture satisfies the statutory
requirement to be under the control, management and supervision of a registered
person.

Here,
we describe the first of these as a “practice volunteer”, and the
second as a “business volunteer”.

The statutory choice is
exercisable:

1.
In the case of a practice volunteer, by applying for registration in the
Register of Architects and paying the annual retention fee (under sections 4 to
11), or by enrolling in the statutory list of visiting EEA architects (under
section 12).

2.
In the case of a business volunteer, by complying with the control,
management and supervision requirements (of section 20(3)).

The voluntary burdens which
result from the exercise of the statutory choice are as follows:

1.
In the case of a registered person, to submit to the regime imposed on
registered persons under sections
to 11 of Part II (payment of fees and satisfying requirements about qualifications
and competence) and Part III – Discipline.

2.
In the case of a person enrolled in the list of visiting EEA architects,
to submit to the regime of section 12 and of Part III – Discipline.

3.
In the case of a business volunteer, to submit to the regime for
control, management and supervision imposed by section 20(3) and be liable to
supply the Board with information showing compliance.

In
consequence: (1) any person or business entity is free to supply services of
the same kind as a registered person, but may only use the title
“architect” in this connection subject to one of the

voluntary burdens; and (2) a
Chartered Architect may only use this title in the course of professional
practice if s/he has opted to submit to one of the voluntary burdens, normally
as a registered person.

Note 2: Do responsible
policy-makers consider that the awkwardness of this

arrangement is
sufficiently outweighed by its usefulness, to architects, their

competitors, the users of
architectural services or the general public?

A
side-effect of the Act is the imposition of burdens on third parties under Part
II, namely, Schools of Architecture, but the effect of the changes made by the
1996 Act is that Schools of Architecture have disappeared from the legislation
without trace. The result has been a certain amount of wrangling between the
Schools, the ARB and the RIBA which is the principal professional body, whose
concerns inevitably include architectural education.

Another
side-effect has been a claim by the ARB to be able to impose on registered
persons certain requirements about PII. The claim is opposed as being
extra-statutory, but supported as being supra-statutory, that is, a
superstructure based on an invisible statutory foundation, designed with
“legal advice”. With an air of mystification the “legal
advice” is claimed by the ARB to be too secret (“privileged”)
to be revealed to disbelieving registered persons but has been expressly
disclosed in a public hearing of the Board's Professional Conduct Committee.
This is examined in further detail below.

“Architecture”
and “Architectural services” are mentioned but not defined by the
Act, but it is

quite obvious that
Parliament has not delegated to the Board the power to define these.

Note 3: In practice, as
technology and the building process continue to evolve new

specialisms, the concept of
architecture can be seen as becoming ever more fluid,

extensive and comprehensive,
and at the same time becoming narrower while

ever more ancillary
specialities are identified.

If
statutory controls of general application, such as Building Regulations and

land use and investment
legislation, are taken out of the equation, what is left

as exclusive to architecture
is the exercise of creative imagination beyond the

ordinary to devise for any
given project something that satisfies today’s

commercial or iconic or
domestic values, and the capacity to convert that into

information which others can
use for the purposes of evaluation and for building

works.

– Do responsible
policy-makers consider that the threat of prosecution for using

the title
“architect” while unregistered makes sense any more?

– Do they consider
that the future of architecture, or architectural education,

or the RIBA, depends upon
it?

The
membership of the Board is the result of one of the changes made by the 1996
Act to the registration body’s previous constitution when its name had
been the Architects’ Registration Council of the United Kingdom
[ARCUK]. The Act abolished the Board of Architectural Education, renamed the
Council as the Board, and made this Board [ARB] consist predominantly of
persons appointed by the Privy Council department.

Note 4: It had the effect
of introducing a flaw into the Act as a whole,

which some would call
latent and others patent. It was through this weakness in

the structural design of
the Act that Dr Kelly, CBE, one of the newly appointed

members and the first
chairperson, was able to lead and drive the Board with

such headstrong gusto,
that even now [2005] the Board is undergoing some difficulty

in overcoming the
momentum of its misdirection, and friendly relations with the

RIBA remain in jeopardy.

Her
Annual Reports revealed an unflinching determination, with more regard to

“legal
advice” than to the Act itself, to exalt the Board to a regulatory

authority, as if it had
been furnished with an amplitude of power in the field

of architectural practice
comparable with, for instance, the Bank of England in

its field under section 1
of the Banking Act 1987 (“The Bank ... shall have the

duty generally to
supervise the institutions authorised by it in the exercise

of” the powers
conferred on it by the Act: mentioned in a case reported in 1991,

which was one of three cases
cited by the ARB in February 2002 in answer to a

registered person’s
query about Standard 8 compliance certificates; anyone

properly advised can see
that all three cases tend to support the opposite of

the ARB’s claim).

–
Do responsible policy-makers now consider that the Act and its operation has

effects on Schools of
Architecture, on entry into the profession and on

practising architects
which are increasingly anomalous?

In
the course of its self-development, the ARB has shown too little regard for
natural justice towards architects. The conduct by the ARB of certain cases
against architects has called for renewed scrutiny of Part III-Discipline,
sections 13-19. These include penal provisions against architects. The law
tends to construe penal enactments narrowly, and is disinclined to accept the
pretensions of statutory bodies in favour of an injustice against blameless
individuals in the absence of clear words to that effect. There are certainly
none here.

Part
III must be interpreted with the rest of the Act as it stood when first enacted
in 1996/1997. It was then prescribed (by section 1(4) and Schedule 1) that the
Professional Conduct Committee must consist of 4 of the elected members of the
Board (registered architects elected by registered architects), 3 of the
members of the Board who had been appointed by the Privy Council department,
and 2 who had been nominated by the President of the Law Society; and that the
quorum (for a hearing) must be one of the elected, one of the appointed and one
of the nominated. (A change which came into operation in 2004 cannot affect the
purport of Part III as enacted.)

Normally,
the inclusion of Board members need not be regarded as objectionable. The
legislation stated beyond doubt that the Board is not being given, by way of
the Code or otherwise, a power to impose on registered persons a duty to assist
the Board by giving information, in the name of “monitoring”, or
otherwise in connection with a Code Standard, such as the Standard 8 Statement.

But
the Board, as a matter of its own policy, has notified registered persons to
the effect that they are required to complete the Standard 8 Compliance
Statement and refusal to do so makes a person liable to a finding of guilty by
the PCC, and liable to penal sanction.

The
Board’s conduct thereafter has been consistent with an attempt to have
registered persons, the PCC and others believe that simply using the word
“require” in the Board’s official document will suffice to
bring the disciplinary procedures into operation.

It
should not take an impartial and properly informed person long to see, first,
the spurious character of such an attempt, and secondly, that it would be
contrary to natural justice to have a committee consisting of a majority of
Board members themselves (at least two out of three) deciding upon such an
issue, in a contest between the Board as the party making such a claim on its
own behalf, and an architect who has had the temerity to refuse to be
browbeaten by the Board’s effrontery.

Native
common sense is enough to see that any “legal advice” which led the
Board into claiming that the words as enacted authorised such conduct by the
Board is bound to be suspect; and, in the circumstances, the objection is too
fundamental to be avoided by later on appointing for a PCC hearing persons who
are not and never have been Board members.

–
Can responsible policy-makers consider that such overbearing or devious conduct
on the part of a statutory body is acceptable by the standards of the rule of
law?

AUTHOR:

-----Robert Johnstone, M.A.
of the Middle Temple
& Lincoln’s Inn,
Barrister. 14 December 2005

See also : some statements
and observations, and a suggestion that may

be of interest to inquirers
and policy makers: “Ambition, Rationalisation...Solution?” [3 ma
ArcAct  3s3]

~~

#

1   ma Home     ARCHITECTS ACT

7   ma ArcAct    7s4       ze:
"...Why now?": AARUK contributor's comments on consultation draft
(25Sept07)

TITLE: Comments on the
Government’s draft amendments to the Act : why now? (draft amendments published
in August 2007 for public consultation)

ARTICLE: See AARUK
website  for the whole article with
on screen links.

Treaty
obligations: From the end of 2007 the Architects Act 1997 will have been
extensively amended by regulations made by a minister of the UK government under section 2(2) of the UK European
Communities Act 1972. This amendment will have been made pursuant to the
current European Directive 2005/36/EC (alias EC/36/2005) and treaty obligations
binding upon the UK
and other states of the European Union. In that respect, amendment was
inevitable and inexorable, and consequent upon the restrictions applying (for
well over 60 years) to the use of the simple word "architect" in
connection with the statutory Register, operated under Westminster legislation
by which the executant body was renamed as the Architects Registration Board
from 1997 (previously Architects’ Registration Council of the United
Kingdom). The amendment contrives to add many pages of complicated text to a
piece of legislation which was otherwise tolerably trim, neat and
comprehensible in its consolidated form in the 1997 Act.

Impact:
Many practitioners will have paid little attention to the amendment beyond
noticing that it is likely that there will be a commensurate need to expand the
human and other resources employed for giving effect to the additional activity
prescribed for the Board to perform; and that the impact upon the annual fee
which the Act enables the Board to demand is unlikely to be favourable to
architects in this country who, by application or retention, choose to become
registrants on what will in future be “Part 1” of the Register. The
general effect on teaching and practice, or on the inter-disciplinary process
in the service of the built environment, is uncertain.

Problematic:
The amendment may be seen as no other than a neutral and painstaking legal
draftsman would have to compose, given the EU treaty obligations and the
continuance of the statutory Register of Architects which the profession had
wished upon itself over ten years ago, combined with the unequal standard of
qualification currently operative, which has been mentioned elsewhere. (See An
unequal standard across Europe). But, seeing
that the Schedule headed "Visiting Architects from Relevant European
States" alone occupies more than six pages of the amending regulations, it
is evident that this has been a costly exercise, begging the question: at what
point does yesterday's solution become the problem of today or tomorrow, in
view of the nexus (currently acknowledged by government policy affecting
departmental operations) between regulatory activity and the burdens of
information requirements, particularly involving NDPBs and third sector
activities? Is it a practical way of enabling the profession to give of its
best in the modern world by way of education and practice, or is it a device of
economic protection in need of regulatory reform?

For
instance the issue is much more problematic than could be solved by brand or
business differentiation alone, or some other device of the theory and practice
of brand architecture, the importance of which has come to be widely
acknowledged, and has been helpfully described by the firm
"Interbrand" (of Omnicon's "Diversified Services Agency"),
which has a claim to be considered "one of the world's leading consultants
in brand strategy, valuation and naming".

NDPB:
The Board has been classed as a "Non-Departmental Public Body" in the
language being used by government departments (CABE, now a statutory corporation
under an Act of 2005, is another). The majority of the Board is appointed by
one such department; and it has been assigned the function of the
"competent authority" which has to be designated by every EU state.
Architects will be aware that, under the present regime, the Board has been
allowed pretty much free rein to expand its activities with the paraphernalia
of a logo for registrants, third party reviews, bulletins and whatnot.

EU
methods: Unlike this country, most of the states of the Union
have the distinction of being founded as sovereign and constitutional republics
or kingdoms in or after the nineteenth century, as successors of earlier ones
or as seceders. They are habituated to applying the acquired skills of state
bureaucracy for directing, managing or controlling activities within and across
the borders of their territories, adapted to their particular needs, policies,
histories, traditions and cultures, to which has been added the declared treaty
aim of developing an "internal market" and participating as an
"ever closer union" in the global economy and world community. This
has meant that responsible policy-makers have had to consider what the Board
can now be given to do.

Disadvantage:
There may have been undeclared assumptions about present or future policy
benefits for the profession or for others. But a critic could claim that the
persons most likely to be disadvantaged are those who have qualified in this
country and wish to carry on practice here using the title “architect”;
and the only persons likely to be advantaged are those who derive satisfaction
from their responsibilities as appointed members of the Board (who cannot
themselves be practising architects), or others who are in competition with
architects whose profession has been trammelled in this way by what amounts to
an ineffectual restrictive practice which criminalises certain uses of an
ordinary English word, and could be styled “coercive coaxing”.

Timely:
The good news for the profession and its friends and clients at home and
abroad, for the general public and for policy-makers in European Union and
other states is that from July 2007 the RIBA has made timely arrangements for a
voluntary register of Chartered Practices, and for International Chartered
membership: for preamble to the RIBA Charter go to RIBA Charter and Byelaws;
for Status of the ARB, Part 2 para.1 go to Status of the ARB.

Recognition:
The Directive was dated 7 September 2005 and headed "on the recognition of
professional qualifications". An understanding of its origin and purport
requires, among other things, knowledge of the information set out in its
preamble. A certain anomaly is mentioned in paragraph (12) (page 34 of the
Departmental consultation document given limited publicity in late August 2007)
which reads as follows:

"(12) This Directive
concerns the recognition by Member States of professional qualifications
acquired in other Member States. It does not, however, concern the recognition
by Member States of recognition decisions adopted by other Member States
pursuant to this Directive. Consequently, individuals holding professional
qualifications which have been recognised pursuant to this Directive may not
use such recognition to obtain in their Member
State of origin rights different from
those conferred by the professional qualification obtained in that Member State,
unless they provide evidence that they have obtained additional professional
qualifications in the host Member
State".

Registered
architect: Forward-looking policy-makers will have seen that ways of resolving
the anomaly will be open to fresh consideration now that this stage has been
reached. One way would be by further amending the present Act so that
restriction is re-applied to the use of the specifically descriptive term
"Registered Architect", as in the originating legislation of 1931. It
is known that the Board has helpfully expressed support for use of
"Registered Architect" as a distinguishing style or title for
registered persons. That would relieve the Act of restricting the use of the
simple word "architect" in a way which is uniquely confusing and
ineffective, and which now gives legislative force to hidden ambiguities
generated by the two-tier system consequent upon accommodating the EU method of
operation mentioned above: An unequal standard across Europe.

If
the Register of Architects is to have a future this can be simply to serve as a
government office for such certifying functions as may be inevitable in this
country pursuant to EU obligations, while chartered bodies are left free to set
their own qualifying standards for membership.

The
public: It must have been a challenging task for responsible policy-makers to
do justice both to the general public and to architects, wherever they have
obtained their formal qualifications. Independent observers may see (as had the
author of the Warne Report which preceded the amending legislation of 1996)
that the public is best served by means of statutory regulations of universal
application (such as Building Regulations) on the one hand and arrangements
free from the taint of monopoly (such as have been made by the RIBA for Client
Design Advice) on the other.

AUTHOR:

An AARUK contributor, 25
September 2007.

See further:

23  ma Regas    Amendment
of June 2008 to the Act of 1997: An early consequence

23  ma Regas    23s1     Amndt of Jun08 to the
Act of 1997, links (zx: ) to Regulns and Explanatory Mems.

23  ma Regas    23s2     AARUK appraisal of
Amndt of Jun08 to the Act of 1997

24  ma Regas    Parliamentary
replies: cost of retention (Oct, Nov 2008)

25  ma Regas    Case
Study 3 (EU) Part 2: Conflicts of interest: s.4(2A) (10Feb09);SI 2008No. 1331

See next: The right to have name removed from the Register is
thwarted

~~

#

11  ma Home     ARCHITECTS
REGISTRATION BOARD

12  ma ArcRB    ze:
Composition of the Board [ARB]. Handbook for Board members

TITLE: Composition of the
Board

ARTICLE: See AARUK
website  for the whole article with
on screen links.

Part
I of Schedule 1 of the Architects Act provides for the composition of the
board. 8 lay members are appointed by the Privy Council while 7 are elected
from the register by those on the register.

Information
from the Clerk of the Privy Council given in April 2004 concerning the
appointment of members indicated that it is usual for the Privy Council to
appoint a committee for this purpose. In the case of former members Mr Humphrey
Lloyd QC and Mr Alan Crane CBE, a Committee consisting of the Rt Hon John
Prescott MP, Deputy Prime Minister, and the Rt Hon Baroness Amos, Lord
President of the Council was appointed – although it did not meet for the
purpose, signatures being applied separately.

Board
elections are held every three years with a clean slate. If a vacancy among the
elected members occurs, the board appoint another member from the register who
holds the appointment until the next election round. On the other hand
appointed members may hold their posts for two periods of three years, with
appointments made to fill casual vacancies as they occur lasting a full three
years. Thus the majority of appointed members, in addition to carrying the
majority, also provide continuity across each triennium.

Elections
are conducted by rules of the board approved by the Privy Council, called the
Electoral Scheme. Under paragraph 8.1 of this scheme, the electoral system is
described as being by

single transferable vote
based on rules prepared by the Electoral Reform Society. However, although
similar to the ERS Single Transferable Vote system, the scheme described is
unlike the model because it is incapable of exact resolution. The Electoral
Reform Society, which counts the votes, have to fudge the result to make it
work or, as they did in 2003, apply their own rules (rather than those approved
by the Privy Council) to the count in order to achieve a result.

When
these rules were proposed for approval in September 2004 – the board
minutes do not record the detailed discussion that took place – the RIBA
wrote to the Privy Council objecting to the scheme. Despite this, it is
understood that the scheme was approved with only two signatories, Baroness
Amos

and John Prescott.

The
Electoral Reform Society have said of the board's electoral system: "There
are sufficient drafting inaccuracies in these rules for them to be problematic.
We are concerned at the reference to the ERS in these rules. As far as the STV
election goes, if you say these rules are based on the ERS rules, it is like
saying 'she is a little bit pregnant'".

Doubts
about the Electoral Scheme have also been raised over the board's chief
executive acting as its returning officer. Under the General Rules of the
board, rule 4(iv), the chief executive acts on behalf of the board in
implementing its policies "as is desirable or necessary for the efficient
operation of the board's activities". As returning officer, under
paragraph 5.8 of the Electoral Scheme, those duties may include editing
election statements of candidates "as appropriate" if the returning
officer "believes that the statement requires editing". (See Status
of the Registrar.)

In
order to stand for election, since 2004 all candidates are required to sign a
nomination paper confirming, among other matters, that they "undertake to
observe and comply with the board's General Rules and the Board Members'
Handbook". (The Handbook thereby ceases to be guidance, and becomes a rule
of conduct.) (See further in Footnote)

By
paragraph 8.1 of the former Policy on Matters to be Discussed in Open and
Closed Sessions of Board Meetings, which was incorporated into the Handbook,
elected members were [informed that they would] not only "be bound by
decisions of the board or any committee of the board" but also that they
would "not make any public comments which would call into question any
decisions either past or present".

The
consequence of these arrangements for board members was that they were bound to
conform to the board's decisions even if they consider those decisions to be
unlawful; that members of the board sitting on the Professional Conduct
Committee could not reach a decision objectively on the evidence before them;
that members standing for re-election after a first term of three years could
not write freely in their election statements; that members concerned, say,
over the prudent management of the finances of the board could not discover
financial information for themselves, and that if any board member cared to act
in conscience, then they would be aware that the board has a history of
enforcing its policies on its members through the courts.

Now,
it is acknowledged, the Policy has been changed and is less oppressive, though
it must be said that some would consider it unwise that there is no public
accountability over a decision to take an item of business into closed session.
However, from 20 June 2008, when it comes into force, the Board will be
influenced by The Architects (Recognition of European Qualifications etc and
Saving and Transitional Provision) Regulations 2008 (S.I. 2008 No. 1331 - for
which see Legislation), where at Regulation 21 provision is made for a new section
22c of the Act which prohibits the Board and the Registrar from disclosing
certain information.

---------------------------

Footnote: The Board
Members’ Handbook is not published on the ARB website; those trying to
find it through the internal search engine will find their path blocked by a
password system.

The
Handbook sets out Lord Nolan’s Seven Principles of Public Life. The 5th
Principle, openness, states: “Holders of public office should be as open
as possible about all the decisions and actions they take. They should give
reasons for their decisions and restrict information only when the wider public
interest clearly demands”.

It
is surprising therefore that the handbook contains the following provisions,
which have been disclosed during open sessions of board meetings:–

- “Although no clear
authority can be cited, it should be assumed that members of the Board are
under an obligation to maintain confidentiality in relation to such privileged
information or indeed, in relation to any information concerning ARB.”

- “The Board wishes to
encourage openness in its proceedings. However, until such time as it is agreed
by the Board that a matter can be brought into the wide domain, confidentiality
must prevail for all its proceedings and papers.”

See also: The "wider
remit"

~~

#

31  ma Home     REGISTRATION-a
education

35  ma Reged    35s1     ze: Architectural
education in UK,
19c.-20c. (June 2007)

TITLE: Architectural
education in the United
Kingdom : Examinations, qualifications and
reasonable expectations

ARTICLE: See AARUK
website  for the whole article with
on screen links.

[ INTRO: This informative
article, published on 2 June 2007 on a separate page, was submitted by a
contributor for the information of inquirers and policy-makers, particularly having
regard to the topics of eligibility for Membership of the RIBA, mutual
recognition of qualifications among EEA
States, and freedom to
practise as an architect worldwide. ]

ARTICLE:

After
nearly a century of endeavour and negotiation which had been led by the Royal
Institute of British Architects, a statutory Board of Architectural Education
was formed under the Architects (Registration) Act, 1931. For the purposes of
constituting the Board of Architectural Education the Act included a list of
Schools of Architecture in the United
Kingdom. The statutory Board was abolished
in the 1990s, and when the Architects Act 1997 repealed the 1931 Act the
statutory list of Schools of Architecture went with it.

The
1931 Act had come to be passed at the end of a century of development in
educational provision and in the method of qualifying by examination. The 1997
Act was passed in the period after the United Kingdom had become one of the
Member States of the European Economic Community, later named the European Union,
an organization which, among other things, has required Member States to remove
obstacles to the freedom of movement and establishment in respect of
professional practice, employment, trade and business within the territories of
the Union.

The
method of qualifying by passing an examination which the RIBA had recognized as
allowing exemption continued in the period when the 1931 Act was in force, and
remained available under the later legislation.

By
a further development, from 2007 a Chartered Member of the RIBA may apply for
the registration of a Chartered Practice in respect of a business providing
architectural services and comprising one or more Chartered Members meeting
criteria for, and operating in accordance with, a prescribed scheme.

19c. Background

It
will be recalled that the background to the developments in education and the
method of attaining professional qualification had been the unprecedented
development of industrial and commercial activity in the United Kingdom
and other countries in the course of the nineteenth century. This, and the
impact on the working and living conditions of the populations affected, had
been making demands for the building of factories, warehouses, offices,
educational establishments, hospitals, housing, places of recreation and
entertainment and places for religious and other purposes. With that came
demands upon architectural practitioners for designs for buildings of all
kinds, qualities and standards, for the supervision of the construction of
works, and in some cases for making planning schemes for area development or
redevelopment, of greater or lesser extent; sometimes collaborating with other
branches of the construction professions, notably surveyors, civil engineers
and, as the period progressed, structural engineers, and mechanical and
electrical engineers. The demand for architectural services, in respect of both
traditional and newer materials and techniques, was coming from public bodies,
commercial and industrial enterprises, private owners or investors,
philanthropists, benefactors and others.

Institutional arrangements :
RIBA

As
a result, institutional arrangements for architectural education became
increasingly systematic, in respect of examinations for formal qualifications,
and making qualifications a condition for granting some other form of
distinguishing style or title (such as Fellow, Associate or Licentiate of a
professional body), or for the right or expectation to be able to practise as
an architect, on one’s own account or as a partner or as an assistant in
another’s office.

A
leading participant in the development of those institutional arrangements was
the society which had been formed in London
in the 1830s and had petitioned for, and in 1837 had been granted, a charter of
incorporation. This society was later granted the name Royal Institute of
British Architects, and is for convenience referred to as the RIBA.

Sources

The
historian will find some source material in the Archive which the RIBA has made
accessible at the Victoria and Albert Museum, and in books, periodicals and
other publications of the period which have been deposited and retained in the
British Architectural Library (of the RIBA).

Another
contemporaneous source of information, upon which the following is largely
based, is provided by two editions of the Encyclopaedia Britannica, the
eleventh of 1910 and the fourteenth of 1929. These editions contain articles
which conveniently indicate how examination, as a method of gaining recognition
for the attainment of the specialist knowledge and skill required of a
professional practitioner, had grown and had been thought of in the period
leading up to the passing of the 1931 Act.

Qualifying examinations

The
index of the 1910 edition offers users very little more about architectural
education than a few words in an article on Examinations generally, which was
attributed in part to Paul George Konody, Art Critic of the Observer and the
Daily Mail, formerly Editor of The Artist, author of the Art of Walter Crane;
Velasquez, Life and Work; etc, and in part to Arthur Watson, Secretary in the
Academic Department of the University of London. It began with the paragraph:

“The term
‘examination’ (i.e., inspecting, weighing and testing; from Latin
examen, the tongue of a balance) is used [in the article which followed] to
denote a systematic test of knowledge, and of either special or general
capacity or fitness, carried out under the authority of some public
body.”

There followed eight
sections beginning with History and ending with a critical appraisal headed The
Object and Efficiency of Examinations, and their Indirect Effects. The second
section was on Professional Examinations, followed by others on School-leaving
Examinations, mentioning the “accrediting” system in the United
States started by the University of Michigan in 1871; Methods of Examination:
Written, Oral, Thesis and Practical; Competitive Examinations; The Organization
and Conduct of Examinations; and Marking, Classification and Errors of Detail.

Perspective

To
put the topic of the present article into perspective, it may be mentioned that
the section on History began as follows:

“The
oldest known system of examinations in history is that used by China for the
selection of officers for the public service (c.1115 B.C.), and the periodic
tests which they undergo after entry (c.2200). The abolition of this system was
announced in 1906, and, as a partial substitute, it was decided to hold an
annual examination in Peking of Chinese educated abroad.

“The
majority of examinations in western countries are derived from the university
examinations of the middle ages. The first universities of Europe
consisted of corporations of teachers and of students analogous to the trade
gilds and merchant gilds of the time. In the trade gilds there were
apprentices, companions and masters. No one was admitted to mastership until he
had served his apprenticeship, nor, as a rule, until he had shown that he could
accomplish a piece of work to the satisfaction of the gild.

“The
object of the universities was to teach; and to the three classes established
by the gild correspond roughly to the scholar, the bachelor or pupil-teacher,
and the master or doctor (two terms at first equivalent) who, having first
served his apprenticeship and passed a definite technical test, had received
permission to teach...”

After
a survey of the development of examination practice in the universities of
western Europe up to the early 20c., the next section of professional
examinations began with the remark “University examinations for degrees
having ceased to be used as technical tests of teaching capacity, new
examinations have been devised for this purpose”. For examinations in
Medicine, the article referred the reader to the article on Medical Education, and
this section concluded with a single paragraph headed Other Professions,
stating that a system of professional examinations carried on by other
professional bodies, in some cases with legal sanction, was developed in
England during the nineteenth century; and, in a list of subjects described as
“the most important” mentioned “architecture (Royal Institute
of British Architects )”, along with: accountancy, actuarial work, music,
pharmacy, plumbing, surveying, veterinary medicine, technical subjects, eg cotton-spinning,
dyeing, motor manufacturing, commercial subjects, shorthand and engineering
(civil, mechanical and electrical).

As at 1929

Publication
of the fourteenth edition of the Encyclopaedia Britannica in 1929 happened
shortly before the Board of Architectural Education was constituted under the
Act of 1931. In it there was an article three pages long on Architectural
Education, attributed to Lionel Bailey Budden, MA, ARIBA, Associate Professor
of Architecture in the University
of Liverpool. The opening
sentence was:

“Underlying the system
of architectural education at present established in most Western countries is
the assumption that architecture is one of the fine arts, and that the prime
object of the training which the architect should receive is to equip him as a
creative artist in building”.

That
could be compared with the words of the charter which had been granted to the
RIBA in 1837, in which the purpose of the Institute was described as:

“... for the general
advancement of Civil Architecture, and for promoting and facilitating the
acquirement of the knowledge of the various arts and sciences connected
therewith; it being an art esteemed and encouraged in all enlightened nations,
as tending greatly to promote the domestic convenience of citizens, and the
public improvement and embellishment of towns and cities...”

When
the present supplemental charter was granted in 1971, part of the first charter
was revoked but the words quoted were retained.

In
the meantime Professor Budden’s article of 1929 included the following:

“... it is generally
agreed that the study of architecture should be preceded by a liberal
education. As one of the fine arts, historically associated with the arts of
painting and sculpture, and as the background of civilized society, it demands
both for its practice and its appreciation some measure of general culture. The
tendency today [1929] is, therefore, for schools of architecture in Europe, the
British Empire and America
to require from candidates for admission evidence of a broad non-technical
education... Today architectural education in all countries is in the hands of
practising teachers. Direct connection between the instruction given in the
school and the experience of actual practice is thereby assured ...”

The
article then considered: Italy,
France, Great Britain and Dominions, Other European
Countries, United States,
and Mexico.
It mentioned that the largest school of architecture in England was that of the Architectural
Association (London) and the next that of Liverpool University, and explained the part
played by the RIBA:

“From its
foundation in 1835 the Royal Institute
of British Architects has
been the supreme controlling authority of the profession throughout the empire.
At no time, however, has the RIBA itself undertaken the teaching of
architecture. But by setting up, in the latter half of the last century [19c.],
a centralized system of examinations when no professional tests existed in the
country, it performed a notable service in raising the general level of
professional knowledge. Through its board of architectural education it has now
delegated to certain approved schools the task of qualifying candidates for
admission to the institute, only maintaining its own centralized examinations
for students not seeking entry through scholastic channels.”

Schools
of architecture which were then recognized for exemption from the RIBA final
examination (except in the subject of “Professional Practice”) were
named as:

“Robert Gordon’s
colleges, Aberdeen; Edinburgh College of Art; Royal technical College, Glasgow;
University of Liverpool; Architectural Association, London; University of
London; University of Manchester; McGill University, Montreal; and the
University of Sydney.”

Schools
in certain institutions which were then recognized for exemption from the RIBA
intermediate examination were named as:

“School of Art,
Birmingham; Royal West of England Academy, Bristol; University of Cambridge;
Technical College, Cardiff; Leeds College of Arts; Leicester College of Arts
and Crafts; Northern Polytechnic, London; Armstrong College, Newcastle-on-Tyne;
University of Sheffield; Municipal School of Arts and Crafts, Southend-on-Sea;
University of Toronto; and Sir J. J. School of Art, Bombay.”

It
was mentioned that in both classes the maintenance of the requisite standard
was assured by the periodic inspection of the visiting board, appointed by the
RIBA board of architectural education, which reported to the institute on the
work of the various schools granted or applying for exemption.

The
system continued after the statutory Board of Architectural Education had been
constituted, in connection with the provision in the Architects (Registration)
Act, 1931 making it the duty of the Board to recommend “the recognition
of any examinations in architecture the passing of which ought, in the opinion
of the Board, to qualify persons for registration” under the Act
(subsection 5(2)(a)).

Consonant
with Professor Budden’s remarks at that time, the objects of the RIBA are
declared in its charter to be:

“The advancement of
architecture and the promotion of the acquirement of the knowledge of the Arts
and Sciences connected therewith”;

and the next paragraph in
the charter expresses the power of the RIBA to grant diplomas, certificates or
other forms of recognition.

Later developments

The
former division of the membership of the RIBA into the two classes of Fellows
and Associates ceased under the supplemental charter and byelaws of 1971, but
the method of qualifying by passing an examination which the RIBA has
recognized as allowing exemption remains available. To be eligible for election
to the now undivided class of Chartered Members a candidate is still required
to have undertaken courses of study and passed examinations which have been
prescribed or recognized by the Council, or to be able to demonstrate to the
satisfaction of the Council having had a proper training in architecture.

As
the field in which architecture is practised has continued to change, so has
the RIBA Chartered Membership been keeping pace. In recent years a Byelaw was
introduced to the effect that practising members are responsible for
undertaking continuing professional development, defined in the Byelaws as:

“The systematic
improvement and broadening of knowledge and skill and the development of
personal qualities necessary for the execution of professional and technical
duties in the course of a Chartered Member’s working life”.

A
further and more recent development has been the passing of a Byelaw allowing a
Chartered Member to apply for the registration of a Chartered Practice, defined
in the Byelaws as:

“a
formally-established business providing architectural services and comprising
one or more Chartered Members which meets criteria for, and operates in
accordance with, a scheme prescribed by the Council, or a board to which the
Council has devolved responsibility”.

Further information

For
further information about the course of events before the passing of the 1931
Act and up to the present day, see other articles listed on the Wikipedia
Category page Architects Registration in the UK.

AUTHOR:

An AARUK contributor, 30 May
2007

~~

#

37  ma Reged  Course validation or prescription of
qualifications? (26 May 2009)

37  ma Reged    37s1     ze: Letter to ARB 9
May 2009 re: Consultation 2009/01

TITLE: Course validation
or prescription of qualifications? (26 May 2009)

ARTICLE: See AARUK
website for the whole letter which is abridged below.

[One of the AARUK
contributors (in a letter to Board Members of 9 May 2009 arguing that the
current practice of the Board is to validate architectural courses rather than,
as permitted by the Act, to prescribe qualifications) has suggested that the
whole of the Board's involvement with "learning outcomes" should be
unravelled so that the Board can deliver its statutory duty to prescribe
qualifications to the equivalent level of RIBA Part II, and no higher.]

The
letter of 9 May 2009 to members of the Board [ARB] was headed
"Consultation 2009/01 – Amendments to the
Board’s Criteria at Part
1, Part 2 and Part 3".

Ÿ
It began by stating its purpose as:

"to demonstrate that the Board’s governing statute, the Architects Act, permits the
Board under section 4(1)(a) to engage in no activity beyond prescribing the qualification
–whereas the Criteria to which you [the ARB] refer either in their present form or in any revised
version are clearly intended to provide the means of validating courses rather
than prescribing qualifications. The Board has a statutory duty to do no more
than to prescribe qualifications and it follows that these Criteria are
extraneous to the purposes of the Act."

Ÿ
and ended by
stating:

"The
autonomous “prescription” process of the Arb is unnecessary, never once
demonstrated by evidence as being necessary, and all the while imposing a  wholly unnecessary cost on registrants.

Not
even the cost of this consultation process can be justified, for there is no
statutory justification for the Criteria which the Board now seeks to revise.
The

only proper course of action for the Board is to abandon its present
course

validation process, which is unauthorised, and deliver its statutory
duty to

prescribe qualifications to the equivalent level of RIBA Part II, and no
higher."....

The
following abridgement has been made for the information of inquirers and
responsible policy-makers concerned with this important and far-reaching topic. [The whole
letter is available on the AARUK website.]

After
reviewing the Parliamentary proceedings which resulted in the Architects Act
1997, the letter summarised the position as follows:

"In summary,
the intention of parliament was therefore:–

• To
create a minimalist body setting criteria for admission to the register;

preventing misuse of the title “architect”; disciplining unprofessional

conduct, and setting fee levels;

• To
reduce costs accordingly;

• To
ensure that the Board concentrates on the core functions of registration

and discipline;

• Not
to extend the functions of the Board to cover financial or insurance

matters, and

• To
allow the RIBA to continue in the predominant role in architectural

education without the Board
duplicating that role.

That is how the Act was written and
enacted, and those extracts from speeches

explain beyond peradventure the
intention of the Parliament at that time."

After citing case-law about
statutory interpretation, the letter continued:

"Prescription or validation?

The
Act provides ARB with neither the power nor the duty to give itself the means
that is precisely what it has done through its Criteria. ARB has thereby
created yet another conceptual difficulty arising from the proclaimed ambition
of the Board’s
first chairman to adopt a “wider remit” than that provided by statute. The jactitation of
this particular responsibility has been persistently advanced by the Board
since 1998, and there is now in consequence a great deal of unwinding to be
done.

Duplication
of the RIBA’s
validation process is widely accepted as having given rise to the unfortunate
and dysfunctional relationship between the Board and the RIBA. The cause of
this has been never so evident than has been revealed in the correspondence
between the then Chair of the Board Dame Barbara Kelly and the Heads of Schools
of Architecture on 9 December 2000, when she said:–

“I am writing to all schools of architecture to clarify
a number of issues relating to the validation of courses of architecture in the
UK.
As you are aware, courses are approved by ARB and RIBA under agreed procedures
and criteria. The continued validation of courses is dependent upon courses
fulfilling the criteria and that procedures are followed relating to
revalidation, changes in course provision, and the initial validation of new
courses.”

That Dame Barbara spoke (accurately) of validation rather than (as later became the norm) prescription gave the lie to the incorrect later use of the word when, it seems, the
Board appeared tacitly to have accepted that the grant of course validation was beyond the scope of the Board’s statutory function per se. The
Board’s expansion of interest into this area can by no means
be justified; for on this the Act is silent. It is doubly unfortunate that
concerning these activities the Board has behaved as if it was a professional
institute in direct competition with the RIBA."

After putting the question:
"What then may the ARB prescribe, and how may it do it? " the  letter continued:

"In 2001 and 2002, the RIBA drafted a set of criteria which they
suggested to the Board might be included in a Prescription of Qualification. It
appears that even a prescription along these lines – more complex than those originally set by the EU
Directive 85/384 – was
beyond the statutory function of the Board. However, the then chairman in his
preface to those criteria said:–

“The criteria contained in this booklet will come into
use in September 2003. They will be used in conjunction with the document, ‘Procedures for Validation’, published by the Architects Registration Board and
the Royal Institute of British Architects in August 2000”

demonstrating that the Board, despite the suggestion of the RIBA,
intended not to revert to prescription of qualifications but to continue with
its mistaken involvement in the validation of courses; and having decided,
albeit erroneously, that ‘prescription’ was to include in its meaning not only the power to
prescribe qualifications but also to provide criteria for the assessment and
validation of the quality of courses, the Board was able to embark upon an
unnecessary incursion of doubtful legality into the area of responsibility that
RIBA had been operating successfully since 1901 (expanding to the Empire and
Commonwealth in 1924).       From
September 2003 the Board no longer took part in visiting schools, leaving that
function to the RIBA. Nevertheless it has kept in place a process of paper
validation, and requires schools of architecture to “apply for the prescription of a qualification” . This, to ensure that it may be confident that “all students / candidates awarded the qualification
since the qualification was prescribed must have met all the criteria”.

The letter made further quotation
from the Board's document and continued:

"All
of this demonstrates that the Board has determined that it shall not be limited
to its statutory function of merely prescribing qualifications. It has strayed
into the area of course validation for which there is no provision under the
Act and which, from Lord Lucas’s speech, was clearly intended to be excluded from the
Board so that it might remain undisturbed as the proper function of the RIBA.

A
proper and prudent exercise of the Board’s power would be to prescribe for the purposes of s.4
those qualifications that the RIBA recognizes and validates."

The
letter then considered "Where the Board’s education policy has exceeded its statutory function
- the Examination for Equivalence to Prescribed Qualifications" in connection with section 4(1)(b) of the Architects Act 1997, which provides an
alternative to holding a prescribed qualification and practical experience.

A
part of the letter which considered the position of the Board as
"competent authority" is quoted in extenso as follows:

"Europe
and the Arb as competent authority

By
Article 7 of the European Community Council Directive of 10 June 1985,
(85/384/EEC, now superseded) the United Kingdom was required to
communicate

the list of diplomas, certificates
and other evidence of formal qualifications

awarded, together with the
establishments and authorities that met with the

requirements of Articles 3 and 4 of
the Directive, together with any amendments

to the list as they arose.

Article
3 prescribed certain training, at university level, stating that it must be

balanced between the theoretical and
the practical, so as to ensure an acquisition

of a certain level of knowledge and
skills in outlined areas. Article 4 set the

minimum length of training to be
concluded by an examination of degree standard.

Article
11(I) listed the diplomas, certificates and other evidence of formal

qualifications to be obtained in the
United Kingdom
that are the requirement for

mutual recognition in other member
states. Rather than list the establishments

extensively, the requirement was
stated as the qualifications awarded following

the passing of examinations of the
Royal Institute of British Architects (RIBA),

and those of the schools of
architecture at universities, polytechnics, colleges etc.

recognized by the Architects
Registration Council of the United
Kingdom for the

purpose of admission to the
register. Alternatively, certain other routes to

registration were recognized,
including being an architect member of the Royal

Academy or of the Scottish Royal
Academy and,
alternatively, having been in

practice as an architect within two years of the
commencement of the Architects

(Registration) Act 1931, which was
still then in force.

Under
section 5 of the 1931 Act, ARCUK was given a duty to appoint a Board of

Architectural Education that had as
its duty to recommend to ARCUK the

recognition of any examinations in
architecture the passing or holding of which

ought, in the opinion of the Board,
to qualify persons for registration under the

Act.

The list of diplomas etc
communicated under the 1985 Directive, Article 7.

The first substantive list of ‘qualifications’ and ‘establishments’ submitted by the

United Kingdom was published in the Official Journal of the European

Communities on 19 October 1988 (88/C
270/03). The list included diplomas

awarded by a number of specified
universities, polytechnics, colleges and schools

of art, ‘degrees in architecture’ awarded by others (which are understood to have

been the equivalent of diplomas in
architecture), the final examination of the

Architectural Association, the
Examination in architecture of the Royal
College

of Art and the RIBA’s Part II Examination – in each case preceded by a first

degree in architecture at one of the
named establishments and authorities, or by the

RIBA Part I Examination. In this
edition of the Official Journal, the step of

recognition by ARCUK was omitted – presumably because, having listed the

establishments at length, it had
become redundant.

A
further edition of the Official Journal, dated 11 July 1998, made no
substantive

change to the list of qualifications
and establishments but added a further

requirement of a certificate in the
following terms:–

These diplomas, degrees
and examinations are to be accompanied in

each case by a certificate
issued by the Architect’s Registration Board

(ARB) confirming that the qualifications comply with
Directive

85/384/EEC and are
recognized by the Board for admission to the

Statutory Register of
Architects.

In this, the following may be noted:–

• The requirement for a certificate uses the language
of the 1931 Act in that the

certificate is required to confirm
that the qualifications are recognized
by the

Board even though that Act had been
repealed.

• Neither the Housing Grants, Construction and
Regeneration Act 1996 nor the

later consolidating Architects Act
1997 gave either power or duty to the ARB

to ‘recognize’ architectural qualifications. This power was repealed, to be

replaced by a duty merely to ‘prescribe’ qualifications, clearly demonstrating

that the ARB had no locus in the
process.

In November 2001 further revisions
were made pursuant to Article 7 of the

Directive. Contrary to the Directive’s express requirement for the communication

of the establishments and
authorities awarding the qualifications that satisfy the

requirements of Articles 3 and 4,
those establishments were no longer listed

substantively. Instead, the bodies
awarding the qualifications were generically

listed as ‘universities, colleges of art’, etc., and the new condition precedent to EC

recognition was stated as being:–

Certificate of
architectural education, issued by the Architects

Registration Board,

even though there was no provision
in the Architects Act 1997 that

empowered the ARB to issue such a
certificate. It is probable that this mistake

arose from the widely held
misconception that the ARB had the power to

‘validate’ architectural courses.

This view was substantiated by the
wording of the explanatory footnote in the

Official Journal, attached to the
description of the requirement for a certificate of

architectural education, which
states:–

The diploma and degree courses in architecture of the
universities,

schools and colleges of art should have met the
requisite threshold

standards as laid down in Articles 3 and 4 of
Directive 384/85/EEC and

in ‘Criteria for Validation’ published by the Validation Panel of the

Royal Institute of British Architects and the
Architects Registration

Board.

EU
nationals who possess the Royal Institute of British Architects Part

I and Part II certificates, which are recognised by
ARB as the competent

authority, are eligible. Also EU nationals who do not
possess the ARB recognised

Part I and Part II certificates will be eligible for
the

Certificate of Architectural Education if they can
satisfy the Board that

their standard and length of education has met the
requisite threshold

standards of Articles 3 and 4 of the Directive and of
the ‘Criteria for

Validation’.

The
position was therefore embarrassing. The communications made to the

Council under the Directive resulted
in an incompatibility between our domestic

and EC law. The ARB, having no power
to validate and no power to issue a

Certificate of Architectural
Education acted ultra vires when it did so.

The present position
vis-à-vis the EU

The
replacement of the 1985 Directive with that of September 2005, 2005/36/EC,

simplified the matter in that the
new Directive describes the documents and

certificates required for
registration as an architect in the United Kingdom.

Registration must be provided to
those who meet the standards described in

Article 46, automatically reached by
demonstrating a qualification listed in Annex

V.7 point 5.7.1: namely to the
standard of a diploma in architecture or its

equivalent in the RIBA Part II
examination. It should be noted that there is no

express requirement for the higher
level of qualification equivalent to the RIBA

Part III examination. These
qualifications conform to the Part II requirement of

Article 46 of a minimum of 4 years
full-time academic study or 6 years of study

at least 3 of which are full-time,
yet the Board insists both on a longer period of

study and its own equivalent of the
RIBA Part III.

As
long ago as October 2004 the Board had been very well aware that its

insistence upon Part III as a
pre-requisite for registration could be the subject of

a successful challenge on the basis
that it is irrational to require a UK based

student to possess a higher level of
qualification and experience than is required

of a non-UK based student or
architect. While maintaining this unfair, unlawful

and unjustifiable distinction,
registration in Part I of the register continues on an

unequal and unfair basis." [end
of quotation from the architect's letter]

The letter concluded with the
following remarks (quoted at the top of this abridgement):

"The
autonomous “prescription” process of the Arb is unnecessary, never once
demonstrated by evidence as being necessary, and all the while imposing a
wholly unnecessary cost on registrants.

Not
even the cost of this consultation process can be justified, for there is no
statutory justification for the Criteria which the Board now seeks to revise.
The

only proper course of action for the Board is to abandon its present
course

validation process, which is unauthorised, and deliver its statutory
duty to

prescribe qualifications to the equivalent level of RIBA Part II, and no
higher."

~~

#

41  ma Home     REGISTRATION-b competence to practise

42  ma Regmp  42s2      ze:
Note on Proposed amendment to Rule 20 (May 2006)

TITLE: Competence to
practise - proposed amendment to Rule 20 (May 2006)

ARTICLE: See AARUK
website for the whole article with on screen links.

In its announcement (23/05/2006) of the proposed amendment to rule 20 of
the Board’s General Rules, the ARB invites comments on its proposals.  What follows draws attention to aspects
of the rule which are defective and calls into question its validity as a rule
made under section 23 of the Act.

The announcement was made following a Report to the Board by the
Prescription Committee on the subject of ‘maintenance of
competence’ in which the proposed rule change is substantially the same
as that now published. The Report provides no analysis of section 9 and
suggests that the “Board’s current expectations regarding
maintenance of competence” were uppermost in the author’s mind
rather than what section 9 actually states. If a rule is made under section 23
of the Act it will be for carrying out or facilitating the purposes of the Act,
in this instance the purpose of section 9 in the context of the Act as a whole.

General observations

1.
Section 9 is one of the clauses collected under the subheading
“Removal from Register etc.”.   Unlike sections 4 and 5, which
appear under the sub-heading “Registration”, Section 9 does not set
out matters which entitle a person to be registered.  It concerns both registrants and
would-be registrants and provides for the situation where the Board is not
satisfied of a person’s recent practical experience.  Where that is so, the section effects
the exclusion of that person from the register unless he or she satisfies the
Board of their competence to practise.

2.
The section is passive in the sense that it does not require the Board
to be satisfied of a person’s recent practical experience.  Whether there is a need for it to be
active in respect of individuals in any or all of the categories (a), (b) or
(c) of section 9 is a relevant question and one which should be debated in the
light of evidence of need in respect of each category and subcategory of the
individuals affected by the rule. However, the Board may make rules in respect
of section 9 whether or not they are called into operation.

3.
A rule under section 23 in respect of section 9 will concern the
activities and processes whereby the purpose of that section is discharged.  It is suggested that they are those

-       which
result in the Board being ‘not satisfied’ (or satisfied) that a
registrant or would-be registrant ‘has gained such recent practical
experience as the Board may prescribe’,

-
which enable a registrant or would-be registrant of whom the Board is
not so satisfied to have the opportunity of satisfying the Board of his or her
competence to practise,

-
whereby a registrant or would-be registrant ‘satisfies the Board
of his competence to practise’.

4.
The section cannot operate at all unless the Board prescribes recent
practical experience.  Whether this
is done by a rule under section 23 or otherwise would seem of academic interest
only, and the fact that recent practical experience is prescribed under the
current and proposed rule 20 is not criticised.

Concerning the proposed
Rule 20

"Any
person who falls within the categories described in section 9(1)(a), (b) or (c)
of the Act and who is engaged in the practice of architecture must have gained
such practical experience as prescribed by the Board

"The
prescribed practical experience for the purposes of this Rule shall be that
such a person shall have undertaken sufficient activities, including CPD and
active engagement in the practice of architecture, during the period to two
years immediately prior to the application, in order to maintain their
competence to practise in accordance with the Board’s guidelines which
shall be published from time to time.

"Where
the Board is not satisfied that such a person has gained such recent practical
experience, that person may be required to satisfy the Board of their
competence to practise.”

5.         It may be observed that
none of the matters mentioned in paragraph 3 above are the subject of the rule.

first paragraph

6.         This is inconsistent with
the right of a registrant or would-be registrant to have his name retained or
entered on the Register who has not gained the requisite recent practical
experience but is nevertheless competent to practise. In effect this paragraph
contradicts the Act.

second paragraph

7.         This refers to prescribed
recent practical experience ‘for the purposes of this Rule’. The
purpose of prescribing recent practical experience (whether by a rule or
otherwise) is to enable section 9 to operate – see comments above.

8.         Under section 9 the
Board may prescribe recent practical experience. CPD is not practical
experience and the Board has no power to prescribe it. However it may be
possible to introduce CPD by a rule under section 23 as indicated below.

9. The reason for the
prescribed practical experience is superfluous to the rule. The words “in
order to maintain their competence to practise in accordance with the
Board’s guidelines which shall be published from time to time”
should therefore be omitted. A rule concerning guidelines is suggested below.

10.        Retention of a
person’s name on the register by “application” is not
appropriate. The Act itself requires no such application. While persons in
categories (a) and (c) “apply” to be entered or re-entered on the
register, those in category (b) do not – they are on the register until
they are removed.

third paragraph

11.        The
purpose of the paragraph is obscure and appears to be inconsistent with section
9. The section debars a person’s name being entered or re-entered on the
register or, in the case of a registrant, effects the removal of that
person’s name from the register. However this applies only to a person of
whom the Board is not satisfied as regards his or her recent practical experience.
If such a person wishes to be registered or not be removed from the register,
as the case may be, he or she of necessity has to satisfy the Board of his or
her “competence to practise”.

CPD and the Board’s
guidelines

12.        As regards the registrant
or would-be registrant who lacks recent practical experience, a rule which
enables CPD to be brought into the assessment of his or her competence to
practise would seem possible and might read as follows:–

“Where
the Board is not satisfied that a person has gained such recent practical
experience as it has prescribed, the Board may take into account CPD which that
person has undertaken in assessing his or her competence to practise”

alternatively,

“Where
the Board is not satisfied that a person has gained such recent practical
experience as it has prescribed, a person may present evidence of CPD which he
or she has undertaken to satisfy the Board of his or her competence to
practise.”

13.        Given that it is generally
accepted that the Board may publish guidelines relating to certain aspects of
practice, a further paragraph to Rule 20 could state that the Board shall (or
may) from time to time publish guidelines for the benefit of those without the
prescribed amount of recent practical experience for the purpose of section 9.

~~

#

61  ma Home     PROFESSIONAL
STANDARDS-b PII

62  ma Pfsbpii  62s3     ze: Opinion of David
Blunt QC (19 Sept 2007)

TITLE: Opinion of David
Blunt QC (19 Sept 2007)

ARTICLE: See AARUK
website for the whole article with on screen links.

Opinion of David Blunt QC
(19 Sept 2007)

Full text comprising 55 numbered paragraphs

IN THE MATTER OF THE
ARCHITECTS’ REGISTRATION BOARD

AND IN THE MATTER OF
DISCIPLINARY PROCEEDINGS

CONCERNING MR. IAN
SALISBURY

__________________________

OPINION

__________________________

Background

1. (1) This matter relates
to the Architects Registration Act 1997. Unless the

contrary appears, references
in the Opinion to “Sections” are

references to sections of
that Act - which will itself be referred to as

“the Act”.

(2) Section 20(1) provides
that:-

“A person shall not
practise or carry on business under any

name, style or title
containing the word “architect” unless he is

a person registered under
this Act.”

2. I am instructed by Mr Ian
Salisbury, who is a person registered under, but

subject to, disciplinary
proceedings under the Act. Those proceedings are

based upon a report dated 7
December 2005 (“the report”) made to the

Professional Conduct
Committee of the Architects Registration Board -

apparently by a Mr Rider of
solicitors Field Fisher Waterhouse. The report

charges Mr Salisbury with
“unacceptable professional conduct”. The Act

prescribes a range of orders
which can be made by the Professional Conduct

Committee in the event of a
finding of guilt. Those include the removal of the

condemned
professional’s name from the Register of Architects maintained

under the Act (“the
Register”).

3. Paragraph 1.1 of the
report is in the following terms:-

“The allegations of
unacceptable professional conduct are:-

(a) That the Architect
did not maintain an appropriate level of

professional indemnity
insurance; alternatively

2

(b) That despite requests
from the Architects Registration Board,

the Architect failed to
produce to the Architects Registration

Board evidence demonstrating
that he maintains an

appropriate level of
professional indemnity insurance.”

4. In paragraph 2.2 of the
report it is explained that:

“The allegations at
paragraph 1.1 above against the Architect arise

from his obligations
under Standard 8 of the Code of Conduct.

Architects in business or
practice carrying out professional work are

under an obligation to
maintain a minimum level of indemnity of

£250,000 and must
certify by compliance to the Architects Registration

Board in accordance with
Standard 8.”

5. Paragraph 3 of the report
is in the following terms:-

“3. The
Allegations

3.1 (a) The Architect
completed his Statement of Compliance

with Standard 8 for 2002
and 2003.

(b) On 15 March 2004, the
Architect wrote to the Board

stating that he had taken
“a commercial decision” not

to renew his professional
indemnity insurance policy,

which had expired on 13
March 2004.

(c) Despite further
correspondence from the Architects

Registration Board (27
April 2004, 2 June 2004 and 19

November 2004) the
Architect has not provided any

evidence to the Board
that he has maintained

Professional Indemnity
Insurance.”

6. Standard 8 of the
Architects’ Registration Board’s Code of Conduct (“the

Code”) is in the
following terms:-

“Standard 8

Architects should not
undertake professional work without adequate

and appropriate
professional indemnity insurance cover.

8.1 The need for cover
extends to professional work undertaken

outside an
Architect’s main professional practice or

employment and to work
undertaken by employees of an

Architect.

8.2 Employed Architects
should, as far as possible, ensure that

professional indemnity
insurance cover or other appropriate

cover is provided by
their employer.

3

8.3 Without limiting an
architect’s duty to maintain professional

indemnity cover which is
adequate and appropriate for the

work the architect is
undertaking, architects must maintain, in

any event, minimum cover
in accordance with the Board’s

guidelines on
professional indemnity insurance issued from

time to time and provide
such evidence in such form as the

Board may require
demonstrating compliance with this

standard.”

7. In a letter to Mr
Salisbury, dated 31 July 2007, Mr Rider, writing on behalf of

Field Fisher Waterhouse LLP,
stated:-

“I am instructed to
confirm on behalf of the Board that it is no longer

proceeding with the
allegation contained in paragraph 1.1(a) of my

Report dated 7 December
2005 but it is proceeding with the allegation

in paragraph 1.1(b).”

It is clear, therefore, that
the case against Mr Salisbury is not that he did not at

the material time, or does
not, maintain the appropriate level of professional

indemnity insurance. The
sole case against Mr Salisbury is of a breach of the

requirement in Standard 8 of
the Code (i.e. in 8.3) to provide evidence

required by the Board
demonstrating that he did have the appropriate level of

professional indemnity
insurance.

8. There is provision in
Section 14 for disciplinary action to be taken in relation

to:-

“(a) unacceptable
professional conduct (that is, conduct which falls

short of the standard
required of a registered person); or

(b) serious professional
incompetence” -

See Section 14(1).

However, Section 13(4)
provides:-

“Failure by a
registered person to comply with the provisions of the

code -

(a) shall not be taken of
itself to constitute unacceptable

professional conduct or
serious professional incompetence on

his part; but

(b) shall be taken into
account in any proceedings against him

under section 14.”

4

The Questions

9. A review of the procedure adopted in this case in the
context of the Act raises

a number of procedural
questions, but I am not instructed to address those.

The questions addressed to
me are:-

ONE, whether the present
Code Standard 8 is expressed in terms

which are consistent with
the Act, having regard to s.13 and anything

in the following sections
which could be relevant for the purposes of

applying and executing
the legislation according to its true

interpretation (as
distinct from according to enforcement of a policy

which may be thought to
be both reasonable and desirable if it were

actually authorised by
the legislation)?

TWO, whether s.14
authorises proceedings against a registered person

based only on the
admitted fact that despite requests from the Board

pursuant to Standard 8 of
the Board’s present Code the architect had

failed (or had expressly
refused) to provide the Board with evidence

that he maintained an
appropriate level of Professional Indemnity

Insurance.”

10. It is material to note
that these issues have arisen out of the concerns of Mr

Salisbury, who is himself a former member of the Board, as to
whether or not

the Board is acting in
excess of its statutory powers.

General Principles

11. The fundamental
principle applicable to all statutory bodies with limited

powers is accurately
summarised in Halsbury’s Laws of England, 4th Ed.

vol.1(1) at paragraph 20:-

“Excess of
power: substantive limits. A public body with limited

statutory powers must not
exercise authority not conferred upon it.

Thus, a local authority
empowered to establish wash-houses must not

set up a municipal
laundry, nor may it engage in other ventures in

public enterprise in
competition with private enterprise without the

necessary statutory
authorisation. Powers granted for one purpose

are to be used to achieve
that purpose and not an extraneous purpose.

Powers expressly
conferred will, however, be so interpreted as to

authorise by implication
the performance of acts reasonably incidental

to those explicitly
granted. …”

12. Subsidiary principles
include that reflected in the maxim delegatus non potest

delegare - the principle

“… that where
a function has been entrusted by statute to body “X”,

the function should be
performed by “X” and not delegated by “X” for

5

performance by body
“Y”. The theory is that the legislature has

delegated power to
“X” and that a delegate does not itself have power

further to delegate such
power.”

(See Bailey Jones and
Mowbray’s Administrative Law, 4th ed. pages 463-4).

13. Other principles which
are of potential relevance are:-

(1) the principle of
construction that statutes imposing criminal or other

penalties, or encroaching on
rights or imposing burdens should be

narrowly construed in favour
of the person proceeded against or

affected - see
Maxwell’s Interpretation of Statutes 4th Ed. p.238 et seq.

(2) the principle enacted in
Section 3(1) of the Human Rights Act 1998

that, so far as it is
possible to do so, primary and secondary legislation

must be read and given
effect in a way which is compatible with rights

under the European Convention
of Human Rights (“the Convention”) -

in my opinion a right to
registration under the Act is “property” within

the terms of Article 1 of
the First Protocol to the Convention.

(3) the maxim expressio
unius exclusio alterius, the role that assertion of

one or more things of a
particular class may be regarded as silently

excluding all other members
of the class - see Maxwell Op. Cit. p.293

et seq.

Material Provisions of
the Act

General

14. The Act is expressed to
be “An Act to consolidate the enactments relating to

architects”, and it does in fact consolidate the
provisions of the Architects

(Registration) Act 1931
(“the 1931 Act”) as amended in subsequent legislation

which culminated in
substantial changes made in Part III and Schedule II of

the Housing Grants,
Construction and Regeneration Act 1996 (“the 1996

Act”). In the
construction of a consolidating Act the presumption is that

Parliament did not intend to
alter the existing law. However, the history of the

legislation does not appear
to me to be of particular materiality for present

6

purposes - except, perhaps,
in so far as it explains the lack of consistency in

the provisions of the Act.

The Registrar

15. Within the Act,
provision is made for the appointment of a Registrar. He has

the functions provided by
the Act and any other functions which the Board

directs [Section 1(3)]. The
Registrar is required to maintain the Register of

Architects. Entry into the
Register of the name of every person entitled to be

registered under the Act is
mandatory [Section 3(1)].

Registration

16. In Section 4(1) it is
provided that:-

“A person who has
applied to the Registrar in the prescribed manner

for registration in
pursuance of this section is entitled to be registered

if -

(a) he holds such
qualifications and has gained such practical

experience as may be
prescribed; or

(b) he has a standard of
competence which, in the opinion of the

Board, is equivalent to
that demonstrated by satisfying

paragraph (a).”

Section 4(2) provides that:

“The Board may
require a person who applies for registration on the

ground that he satisfies
subsection (1)(b) to pass a prescribed

examination in
architecture.”

Section 5 provides for
suitably qualified nationals of EEA States to apply for

registration, on terms which
are similar to those in Section 4.

17. Section 6(1) makes
provision for an applicant for registration to pay a

registration fee. Section
6(3) provides that:-

“The Board may
prescribe the information and evidence to be provided

to the Registrar in
connection with an application for registration in

pursuance of section 4 or
5.”

18. Section 25 “prescribed”
is defined as meaning “prescribed by rules made by

the Board”, and “prescribe” is
defined as meaning “prescribe by rules”.

7

Removal from Register

19. Part II of the Act
includes the following provisions:-

“8. (1) The Board
may require a registered Retention of name

person to pay a retention
fee of a in Register.

prescribed amount if he
wishes his

name to be retained in
the Register

in any calendar year
after that in which

it was entered.

(2) Where, after the
Registrar has sent a

registered person who is
liable to pay

a retention fee a written
demand for

the payment of the fee,
the person fails

to pay the fee within the
prescribed

period, the Registrar may
remove the

person’s name from
the Register. …

9. (1) Where the Board is
not satisfied that Competence to

a person who - practise

(a) applies for
registration in pursuance

of section 4 or 4;

(b) wishes his name to be
retained or reentered

in the Register under
section

18,

has gained such recent
practical

experience as the Board
may prescribe,

his name shall not be
entered or re-entered

in the Register, or shall
be removed from

it, unless he satisfies
the Board of his

competence to

practise.

(2) Where the Board
decides that the name of a

person to whom paragraph
(b) of subsection

(1) applies is by virtue
of that subsection to

be removed from, or not
to be re-entered in,

the Register, the
Registrar shall serve

written notice of the
decision on him

within the prescribed
period after the date

of the decision. …

11. Where the Registrar
serves notice in writing Failure to notify

on a registered person
asking if he has change of address.

changed his regular
business address -

(a) if no answer is
received within six

months from the sending of
the notice,

the Registrar shall serve
further written

8

notice on him; and

(b) if no answer is
received within three

months from the sending
of the further

notice, the Registrar may
remove his

name from the Register.”

Discipline and Professional
Standards

20. The following provisions
of the Act are relevant for present purposes:-

“13. (1) The Board
shall issue a code laying Code of practice.

down standards of
professional

conduct and practice
expected of

registered persons.

(2) The Board shall keep
the code under

review and vary its
provisions

whenever it considers it
appropriate

to do so. …

(4) [See paragraph 8
above].

14. (1) Where an
allegation is made Professional

that a registered person
is misconduct and

guilty of - incompetence

(a) unacceptable professional
conduct

(that is, conduct which
falls short

of the standard required
of a

registered person); or

(b) serious professional
incompetence.

or it appears to the
Registrar that a

registered person may be
so guilty, the

case shall be
investigated by persons

appointed in accordance
with rules

made by the Board

(2) Where persons
investigating a case

under subsection (1) find
that a

registered person has a
case to answer,

they shall report their
finding to the

Professional Conduct
Committee.

(3) Where the Professional
Conduct

Committee receives a
report under

subsection (2) in
relation to a registered

person, the Committee
shall consider

whether he is guilty of
unacceptable

9

professional conduct or
serious

professional
incompetence.

(4) Before considering whether
a registered

person is guilty of
unacceptable

professional conduct or
serious

professional incompetence
the

Professional Conduct
Committee shall -

(a) serve written notice
on him

outlining the case
against him; and

(b) give him the
opportunity to appear

before the Committee to
argue his case.

(5) At any such hearing
the registered person

is entitled to be legally
represented …

15. (1) The Professional
Conduct Committee

may make a disciplinary
order in

relation to a registered
person if -

(a) it is satisfied,
after considering

his case, that he is
guilty of

unacceptable professional
conduct

or serious professional

incompetence; or

(b) he has been convicted
of a criminal

offence other than an
offence which

has no material relevance
to his

fitness to practise as an
architect …”

21. As can be seen,
sub-sections (2) to (5) spell out a detailed procedure for the

purposes of ascertaining
whether or not a charge is made out.

Use of Title
“Architect”

22. As already indicated,
the use of the word “architect” as a business name by

someone other than a person
registered under the Act is prohibited by Section

20(1).

23. Section 20 further
provides …

“(3) Subsection (1)
does not prevent a body corporate, firm or

partnership from carrying
on business under a name, style or

title containing the word
“architect” if -

10

(a) the business of the
body corporate, firm or partnership

so far as it relates to
architecture is under the control

and management of a
registered person who does not

act at the same time in a
similar capacity for any other

body corporate, firm or
partnership; and

(b) in all premises where
its business relating to

architecture is carried
on it is carried on by or under

the supervision of a
registered person.

(4) The Board may by
rules provide that subsection (3) shall not

apply in relation to a
body corporate, firm or partnership

unless it has provided to
the Board such information necessary

for determining whether
that subsection applies as may be

prescribed. …”

Rules

24. Part V of the Act
includes the following provision in relation to the making of

rules:-

“23. (1) The Board
may make rules generally for Rules

carrying out or
facilitating the purposes

of this Act.

(2) The Board shall,
before making any rules

under this Act, publish a
draft of the

rules and give those to
whom the rules

would be applicable an
opportunity of

making representations to
the Board. …”

Discussion

Registration and Retention
on Register

25. It is of interest that
the pre-conditions to registration relate exclusively to

qualifications and
competence. If an applicant is able to fulfil the criteria in

either sub-sections (a) or
(b) of Section 4(1) [See paragraph 16 above], and has

applied “in the
prescribed manner”, and has “such recent practical
experience

as the Board may
prescribe” within the terms of
Section 9(1), he is entitled to

have his name entered on the
Register. These provisions of the Act, unless

validly supplemented in some
way, rule out consideration of any criteria other

than those specified in
Section 4(1). Questions as to the conduct of an

applicant, as to whether or
not he was “a fit person”, or as to whether or not he

had adequate insurance cover
would be immaterial, and an applicant who

11

fulfilled the statutory
criteria could not be refused registration on the grounds

of alleged misconduct, or
because of the absence of insurance.

26. The position under the
provisions of the Act referred to in the last paragraphs

could not be affected by any
rules made under Section 6(3) of the Act [As to

which, see paragraph 17 above].
This is because under Section 4(1) an

applicant for registration
only has to apply “in the prescribed manner”.

“Prescribed manner”
is prima facie a reference to “form”, and, because this is

a penal statute and because
of Article 1 of the First Protocol to the

Convention, it must be
strictly construed. Rules made under this provision

could not be used to impose
additional qualifying criteria of substance - as

opposed to form. The
statutory criteria could not be supplemented by such

rules. Nor could such rules
require the provision of information or evidence

which was not necessary for
the purposes of assessing whether or not the

statutory criteria were
fulfilled.

27. The analysis set out in
the last paragraph appears to be recognized in the

substantive rules governing
Application for Registration. These appear to be

those set out in Rule 11 of
the Architects Registration Board’s General Rules,

which is in the following
terms:-

“Every applicant
for registration pursuant to Section 4 or 5 of the Act

shall:

a. complete and sign the
appropriate application form, together

with acceptable
documentary evidence satisfying the Registrar

of their identity;

b. submit documentary
evidence of award of qualification or

certification of
completion of studies or examinations in

architecture and, in the
case of an applicant pursuant to

Section 5, a certificate
from the relevant competent authority in

the member state pursuant
to Section 5, (5)(a) or (b) of the Act;

c. submit evidence of
practical training and experience in

architecture undertaken;

d. provide name and
regular business address for inclusion in the

Register; and

e. provide such other
information as the Registrar may from time

to time require.”

28. It is not clear to me
whether the Registrar has required or does require “other

information” from an applicant, but he could not require
information which

12

was not reasonably necessary
for the purposes of assessing whether or not the

statutory criteria were
fulfilled, and if, under sub-paragraph (e) of Rule 10, he

purported to do so, his act
would be invalid - either on the basis that that subparagraph

is to be restrictively
construed as being intended to be limited to

apply to information
specifically related to the statutory criteria, or, if it could

not be so construed, on the
basis that it was expressed in terms which were too

wide and hence were ultra
vires.

29. In relation to retention
on the Register, the only pre-condition to retention of a

registrant’s name
would be the payment of a retention fee (if required), unless

the Board was not satisfied
that the registrant had “such recent practical

experience” as the Board may have prescribed - see
Sections 8(1) and (2) and

Section 9. Again, therefore,
issues as to conduct or standards other than

standards of competence and
practical experience etc. are immaterial.

Consistent with this
analysis is the fact that whereas the Act provides a

detailed procedure to be
followed in the case of any proceedings under Section

14, including a provision
empowering the Board to make rules for the conduct

of proceedings by the
Professional Conduct Committee, no such procedure or

provision is prescribed in
relation to the retention on the Register of the name

of a person who is already
registered. [A counter-argument based on the

absence of fact-finding
procedures for the purposes of dealing, under Section

15(1)(b), with a person
convicted of a criminal offence, would be misplaced:

in the case of a criminal
conviction the investigation of the facts will have

been carried out by the court
in which the registered person is convicted, and

hence the Board is not
concerned with the issue of innocence or guilt in such a

case].

Discipline

30. Under the 1931 Act, a
registered person’s name could only be removed from

the register on grounds of
conduct if he was convicted of a criminal offence or

if, after inquiry, it was
found that he had been “guilty of conduct disgraceful to

him in the capacity of an
architect” - see Section 7 of
that Act. These terms

remained unchanged until the
introduction, by the 1996 Act, of the wording

and regime now to be found
in Part III of the Act. Thus it was only in 1996

13

that any provision was made
for the Board to issue a code laying down

standards of professional
conduct and practice, and that the power to remove a

registered person’s
name from the register was widened to include

unacceptable professional
conduct or serious professional incompetence: at the

same time, the range of
criminal offences relevant for this purpose was

narrowed to exclude offences
which had no material relevance to the

registered persons fitness
to practice as an architect - see Section 15(1)(b) at

paragraph 20 above.

31. It can be seen,
therefore, that now (as in 1931) the legislation did not provide

for any enquiry into an
architect’s conduct prior to registration. The

disciplinary provisions only
applied and apply to “registered persons”. A

reluctance to assert a
disciplinary jurisdiction over persons who were not yet

registered is entirely
understandable. However, it seems a little odd that the

statutes did not provide
that an applicant for registration should be, in effect, a

“fit and proper
person”. However, the 1931 Act did not do so, and nor do the

provisions of the Act, which
(true to the nature of a consolidating statute) are

consistent with the original
scheme.

32. Because of the terms of
Section 13(4) [see paragraph 8 above] and because of

the fact that the procedures
for the promulgation of the Code and of rules are

not uniform, it is important
to distinguish between provisions of:-

(1) the Code; and

(2) “rules”
made by the Board under its rule-making powers.

It is a matter of interest
in the present case that there does not appear to be any

rule requiring a registered
person to provide evidence demonstrating his

compliance with the
Board’s guidelines on professional indemnity insurance -

assuming, for the moment,
that there is power to promulgate such a rule.

There is no such requirement
in the General Rules: PII guidelines issued by

the Board in 2001 include
the statement that “All Architects will be required in

2002 to complete a
certificate of compliance confirming the protection in

place for professional
liability”, but there is no
evidence that those guidelines

have been promulgated as, or
subject to the procedures necessary for them to

become, “rules”.

14

The General Power

33. As noted in paragraph 24
above, the Board has a power to make rules

generally for carrying out
or facilitating the purposes of the Act. However,

this would not entitle the
Board to arrogate to itself powers not conferred by

the Act. The purposes of the
legislation were expressed in the 1931 Act to be

“to provide for the
registration of architects and for purposes connected

therewith”. This was not altered by the amending
legislation. Nevertheless, it

is apparent that the purpose
of the legislation has been to provide for a register

of the title “architect”
(originally, under the 1931 Act the title was “registered

architect”) on the basis of specified conditions, to
prohibit unregistered

persons from practising
under that title, and to provide for the de-registration

of registered persons in
circumstances specified in the legislation. In those

circumstances, in my
judgment it is clear that the Board could not, under the

general power in Section 24,
make rules which imposed conditions for

registration or retention
not required by the express terms of the statute, nor,

rules which for the purposes
of registration or retention, required information

or evidence which could not
be required by rules made under Section 6(3) - as

to which, see paragraph 26
above, last sentence. This conclusion is not

affected by the fact that,
since 1996, the purposes of the legislation have

included the issue of a code
of professional conduct and practice for registered

persons, or by the
enlargement of the grounds for de-registration to include

“unacceptable
professional conduct” and “serious incompetence”.

Other Powers

34. Section 14 (see
paragraph 20 above) includes the following rule-making

provisions to enable the
Board to make rules as to the procedure to be

followed when a
“complaint” is made under that section - see sub-sections (1)

and (6).

35. The Board has made rules
not only as to the procedure to be followed by the

Professional Conduct
Committee but also as to the procedure to be followed

by the persons referred to
in Section 14(1) (see paragraph 20 above). These

15

rules are entitled “Investigations
Rules” and the persons referred to in Section

14(1) are described as the
Investigations Committee.

36. Rule 17 of the Investigations
Rules is in the following terms:-

“Powers of the
Registrar and of an Inquirer and of the Board’s

Solicitor

17. Under these Rules the
Registrar, an Inquirer or the Board’s

Solicitor shall each have
power to call upon any Registered

Person to produce such
information, books, papers, records

and plans as they
consider necessary for discharging their

functions under these
Rules and to permit the inspection of such

information, books,
papers, records and plans at the business

premises of the
Registered Person and, where necessary to

permit any copying (at
the Board’s expense); and every

Registered Person must
promptly, fully and frankly comply with

any requirement made upon
him or her under this Rule. This

requirement
shall not apply to any information in relation to

which
the Registered Person is entitled to legal professional

privilege
or the disclosure of which is prohibited by law.”

37.
Further, Standard 10 of the Code includes the following paragraphs:-

“10.7
An Architect is required to co-operate with an Investigator

appointed
under the Architects Act 1997.

10.8
Failure by an Architect to co-operate promptly and fully with

enquiries
by such an Investigator will count against them in the

event
of disciplinary proceedings and related matters before

the
Professional Conduct Committee. Failure to co-operate

may
also in itself constitute grounds for disciplinary

proceedings.”

38. In the allegations made
against Mr Salisbury no reliance is placed upon any of

the provisions referred to
in the preceding two paragraphs, and no reliance

could be placed upon them
now. In any event it seems to me that:

(1) the grounds upon which a
charge can be made must pre-date the date

when the charge is first
notified to the respondent, and if any

“misconduct”
arises after that date it could only be dealt with in a

subsequent charge;

(2) the validity of Rule 17
of the Investigation Rules is subject to question

on the grounds that it is
doubtful whether the Board has any power to

compel “discovery”
of a respondent’s papers, let alone to delegate such

16

power to the Registrar or
the Board’s Solicitor who is identified under

the Professional Conduct
Committee Rules as, in effect, the Prosecutor

(see rule 11e). An analogous
point (though one with which I am not

concerned) arises in relation
to Rule 8(c) of the Investigation Rules

which, construed literally,
provides for the Board’s Solicitor to make a

report which is required by
Section 14(2) of the Act to be made by the

Investigations Committee.

(3) it is doubtful whether
the Board has power to include a power within

the Code to compel a
respondent to “co-operate” in disciplinary

proceedings against himself.

Question One

39. In relation to Question
Two I have come to the conclusion that Section 13(4)

provides Mr Salisbury with
an obvious and complete defence to the charge

against him - even assuming
that the answer to Question One is unfavourable

to him. Question One,
however, is more complicated. It involves

consideration of, amongst
other points:-

(1) Whether Section 13
requires the Board not only to promulgate

standards of professional
competence and conduct in a code, but, by

implication, requires the
Board to be pro-active in enforcing them, and

hence (arguably at least) to
have the power to require registered

persons to provide it with
evidence;

(2) What is the effect, if
any, if the Board merely has a power and not a

duty to be pro-active in
enforcing the code.

(3) Why, if the Board was
intended to be able to promulgate a code

including provisions
requiring the supply of evidence or information to

the Board this was not
spelled out - as it is in the case of Section 20(4).

(4) Whether, the
Board’s overriding purpose under the Act as a whole is to

protect the title of “architect”,
or to protect “consumers”, or something

between.

17

(5) Whether the register is
essentially an administrative device, and the

Board is simply an
administrative organ for maintaining and

publishing the register, and
not a professional body with power to

admit or exclude from the
profession.

(6) Whether, as has been
suggested, the overriding purpose of Part III of

the Act is to protect
accused persons from misguided, spiteful or

extravagant allegations
which would result in undeserved disciplinary

orders or other injustice.

40. In the time available I
have not been able to reach a concluded view in relation

to Question One.
nevertheless, in the light of the firm conclusion which I have

reached in relation to
Question Two, it is unnecessary to do so.

Question Two

41. Question 2 arises, of
course, on the basis of the assumption that paragraph 3 of

Standard 8 is intra vires,
valid, and effective, and I approach this question on

the basis of that
assumption.

42. The term “unacceptable
professional conduct” is defined in Section 25 as

having “the meaning
given in Section 14”. In Section 14 the meaning is given

in the bracketed words in
sub-section (1)(a):-

“that is, conduct
which falls short of the standard required of a

registered person.”

43. The only place where
such standards can be found is under the Act, and the

only place under the Act
where they can be found is in the Code which, by

Section 13(1), the Board is
required to issue - laying down standards

“expected”
of registered persons. [It is odd that in one section the word

“expected”
is used, and that in the other the word used is “required”,
but in the

absence of any other “requirements”
under the Act as to standards of

competence or conduct, it is
difficult to see what can be referred to in Section

14(1)(a) if it is not to the
Code provided for in Section 13(1)].

18

44. What, however, is one to
make of Section 13(4)? If failure to comply with the

standards laid down in the
code cannot “be taken of itself to constitute

unacceptable professional
conduct” how can professional
conduct ever be

unacceptable? The answer
must be that there must be some additional factor

involved - an X factor. What
may Parliament have had in mind?

45. It seems to me that the
terms of Section 13(4)(a) could only be justified in

circumstances in which there
was a breach of the Code but no actual prejudice.

Thus, for example, a
complaint by a client that he had discovered that a

registered person whom he
had retained did not have the requisite insurance

cover, even if true, could
not be taken to constitute unacceptable professional

conduct, if the client had
terminated the retainer before any loss was suffered

by himself or anyone else.
In the obverse case, where the client only

discovered the absence of
the requisite insurance cover when it was too late,

with the result that the
client was actually prejudiced, there would be a factor

which was additional to the
fact of the breach of the Code.

46. In any event, whatever
the nature of the additional factor (an X factor)

required to negate the
effect of Section 13(4)(a), in the present case there is no

evidence of any factor over
and above Mr Salisbury’s failure or refusal to

comply with the request to
provide the Board with the evidence, requested by

the Registrar, demonstrating
that he had the minimum insurance cover

prescribed in the Board’s
guidelines as required in paragraph 3 of Standard 8

of the Code. He is not in
breach of any “rule”, and even if he was, it is

strongly arguable that the
fact that that breach was also a breach of the Code,

together with the terms of
Section 13(4), would provide him with an answer.

47. The fact that the
request to provide such evidence was made more than once

seems to me to be
immaterial. There has simply been a continuing noncompliance

with the requirement to
provide the requisite evidence in the form

required. Further, it
appears to me that it would be no different even if there

were a number of separate
(and even different) breaches of the Code, provided

none of them included an
‘X’ factor - Section 1(1)(b) of the Interpretation Act

19

1889 would apply to Section
13(4)(a) so as to include the plural in the

singular. This would not be
the case if “a contrary intention” appeared from

the Act, but such a contrary
intention is not evident. It is also material to

recall that this is a penal
statute, and must be construed in favour of the

registered person
who’s right to remain on the Register is under challenge.

48. For the sake of
completeness, I should state that I do not perceive that Section

13(4)(b) presents any
particular difficulty. The effect of (a) and (b) of Section

13(4) is to require any
breach of the Code to be taken into account in any

proceedings against a
registered person under Section 14 but for any charge of

unacceptable professional
conduct or serious professional incompetence to be

rejected if no
‘X’ factor is established and all that remains of the charge is a

mere breach of the Code.

49. It is for the reasons
set out in paragraphs 40 to 47 above that I have reached

the conclusion that Section
13(4)(a) provides Mr Salisbury with an obvious,

clear, and complete defence
to the charge against him. However, since I have

not addressed the actual
terms of Question Two, I now turn to do so.

50. Proceedings under
Section 14(1) may be “triggered” by:-

(1) “an allegation”
that a registered person is guilty of unacceptable

professional misconduct or
serious professional incompetence; or

(2) by the Registrar if it
appears to him that a registered person may be so

guilty.

51. No criteria are required
to be fulfilled before “an allegation” can be

entertained - indeed once an
allegation is made it must be investigated.

Hence, the investigation by
the Investigations Committee of a complaint under

Section 14(1) of whatever
nature, even if the case is one to which Section

13(4) applies, would be
entirely proper and “authorised” by the Act.

52. The Registrar, however,
before raising an allegation of such misconduct or

incompetence on his own
initiative, would be bound to consider whether, on

the evidence, the case was
one to which Section 13(4) applied. Since his

20

judgment involves the
exercise of a statutory power, it would be susceptible to

judicial review, and would
be capable of being set aside if, in making his

decision, he failed to take
account of the provisions of Section 13(4), or if he

took them into account, and
concluded that the case was one in which there

was the necessary additional
‘X’ factor when in fact there was no evidence to

support that conclusion, or
if his overall conclusion that the registered person

might be guilty of
professional misconduct or incompetence was one which no

reasonable person, properly
directing himself, could reach.

53. The position would be
the same in the case of the Investigating Committee

when making its report, to
the Professional Conduct Committee under Section

14(1), as to whether there
was a case to answer, and, incidentally, in the case

of the Professional Conduct
Committee when making its decision in relation

to the charge referred to
it.

54. A decision which is
subject to judicial review on the grounds referred to above

may be regarded as ultra
vires in the sense that the power to make that

decision has not been
exercised as Parliament intended, this being the

principle upon which the
intervention of the courts is often justified - see, for

example, per Lord Browne-Wilkinson
in Reg v Hull University Visitor, Ex

parte Page [1993] AC 682 @
701. On that basis, the continued prosecution of

proceedings following a
decision by the Registrar, or a report of the

Investigations Committee,
which would be found, in judicial review, to be

wanting for any of the
reasons referred to in paragraphs 50 and 51 above,

would be
“unauthorised”. This would still be an apt description even if it
was

a case in which the court,
in its discretion, declined to intervene on the basis

that the more convenient
course was to allow the matter to proceed by way of

the statutory appeal
provided by Section 22.

55. My conclusion in
relation to Question Two, therefore, is essentially in the

affirmative, but in the
light of the view which I have expressed in paragraph

51 above the answer needs to
be expressed in slightly different terms to those

of the question itself.
Accordingly, I respond to Question Two by stating as

follows:-

“Section 14 does
not authorise the Registrar to initiate, or the

Investigations Committee
to report a case to answer in, proceedings

against a registered
person based only on the admitted fact that

despite requests from the
Board pursuant to Standard 8 of the Board’s

present Code the
architect had failed (or had expressly refused) to

provide the Board with
evidence that he maintained an appropriate

level of professional
Indemnity Insurance.”

~~

#

74s1     4A1      Explanatory
introduction: Disciplinary proceedings 10/11 January 2006

TITLE: Explanatory
introduction: Disciplinary proceedings 10 January 2006

ARTICLE: See AARUK
website  for the whole article with
on screen links.

AARUK
invites inquirers and policy-makers to consider the disciplinary proceedings
pursued by the ARB in 2005/6 against two entirely blameless architects who had
decided not to complete the PII compliance statement which the Board [ARB]
claims to be entitled to “require” for the purposes of Standard 8.

1
In these two cases the basic issue was: Whether the single fact that an
architect who has informed the Board of his decision not to complete the
Board’s PII compliance statement can be treated as “unacceptable
professional conduct” in the practice of architecture?

(The
Act makes clear that conduct which has no material relevance to a
person’s fitness to practise as an architect can only be subject to
disciplinary proceedings where the architect has been convicted of a criminal
offence.)

2
The architects (R—L— and J—L—) had not “ticked
the box”, and had informed the ARB that they were under no duty to do
this and had chosen not to. There was nothing else that the Board could allege
about complying with Standard 8 or any other part of the Code, and there was no
third party complaint of any kind. It is self-evident that “ticking the
box” is not a matter of “professional conduct” in the
practice of architecture, nor can an architect’s choice not to
“tick the box” be “unacceptable” professional conduct,
irksome though it may be felt by the Board. Once that had become clear to the
members of the Committee, they could not allow either of these two cases to
proceed, and a decision to quash the proceedings would be inevitable.

3
The members of the Committee who had to identify this basic issue by
penetrating the thickets of confusion which the ARB had been cultivating were a
solicitor appointed by the President of the Law Society, another solicitor
whose experience included sitting on local authority ethical conduct cases
under the Local Government Act 2000, and an architect who had been a member of
the RIBA Council and its Disciplinary Committee.

4
In view of the way in which the Board had been handling the matter, the
architects decided to set out their objections to the case being put against
them in a lengthy document (in two letters) for a preliminary hearing. This was
a “Notice of Application to Quash the Proceedings”. They claimed
that the proceedings were without foundation in law or fact, and were against
the Board’s own policy as had been described by the Board Chairman in an
open letter (to the RIBA President) some months after the proceedings against
them had been started by the Registrar and Investigation Committee.

5
They had proposed that the Board should withdraw the charges. The Board had
declined; but at a Preliminary hearing on 5th October 2005, as a result of
their objection to one of the members of the hearing Committee (a former Board
member) the hearing had to be postponed for her to be replaced by another
Committee member who had never been a Board member. The date for the further
preliminary hearing by the reconstituted Committee was 10 January 2006.

6
Their “Application to Quash” (Nov/Dec 2005) contains much useful
information of general interest about the ARB. Its narrative accounts for
something of the difficulties that have arisen from the skewing of the
registration body’s activities under the new regime, from the time when
the Board (ARB) took over from the Council (ARCUK) in 1997, and it points to
flaws in the legal advice which the ARB has been claiming to rely on. The
architects have made it available to inquirers through this website. It can
make uncomfortable reading for anyone who prefers to leave injustices lying in
expedient obscurity.

The
following is based on an extract from some Explanatory remarks by one who was
present at the hearing of the PRELIMINARY APPLICATION FOR THE PROCEEDINGS TO BE
QUASHED on 10th January, and who had also been present at the preliminary
hearing on 5th October 2005 when one of four earlier preliminary applications
had been heard.

Two Essential facts:

In
making their Application to Quash the two Architects were claiming the
Professional Conduct Committee’s protection in respect of what the
Architects considered to be cause for complaint against the Board.

They
considered that it was essential that the Professional Conduct Committee was
fully conscious of two facts; and that once these had been understood, little
would need to be added to realise that the proceedings should never have got so
far, and should be stopped before going further.

The
first of these two facts was that there was no third party complaint of any
kind. The proceedings were solely the product of the Board’s internal
administrative arrangements, which had been operated by the Registrar and
certain members of the Board, acting as the Board’s Investigation
Committee.

The
second fact is evident on reading the Architects Act 1997 itself. It is this:
the Act assigns to the Board certain duties towards architects, but the Act
puts on architects no duties to the Board. It follows that any rules made by
the Board under the Act must be consistent with that fact.

Any doubt about that can
be demonstrated by going through the Act section by section, but uncluttered by
any pre-conceptions induced by any explanatory material originating from the
Board itself, such as Annual Reports or other publication.

In Summary:

1.
Not even registered persons owe to the Board any obligation concerning
professional conduct; and in particular, registered persons owe no duty to the
Board in respect of anything in the Code issued by the Board under section 13
of the Architects Act 1997. To claim otherwise would be a result of conceptual
confusion or a misreading of the Act.

2.
Apart from officers, employees and agents of the Board, the Act creates no
duties or obligations towards the Board which fall on any one else at all.

3.
Section 3(4) states: “The Board shall publish the current version of the
Register annually...” other provisions of Part II of the Act prescribe
how the Register shall be kept up to date, and who shall be entitled to be
registered; other provisions of Parts II and III prescribe for the Board the
circumstances, events or conditions when a person’s name shall be removed
from the Register; and other provisions prescribe for the Board certain ancillary,
or derivative and secondary, duties in connection with the Board’s
primary responsibility for the maintenance and regular publication of the
Register of Architects.

4.
Nothing in the Act itself creates any obligation which an architect owes to the
Board.

5.
It is self-evident that the Board owes a duty of care to registered persons
first, to see that they are duly registered, and secondly, not to subject them
to any demands or threats connected with registration which are not expressly
within the Act.

The two architects
issued a brief statement explaining their position:

“Like
other architects when the annual registration fee for 2004/5 was due, we once
again received the ARB’s bogus claim to be entitled to require us to
complete the PII compliance form. We exercised the same right as everyone has
when approached by a pollster or marketing agent in the street or by post: we
each decided not to.

“The
ARB thereupon initiated disciplinary proceedings against us. It has been clear
all along that there has been no other reason than our simple refusal, which we
made in the knowledge that like everyone else we are as free to choose not to
answer the ARB’s inquiry as we are a pollster’s. The fact that the
ARB has a statutory duty to publish the annual Register of Architects with our
names and practice addresses in it makes no difference.

“The
proceedings have defied natural justice, common sense and the Architects Act.
It has been obvious for months that the ARB should never have started these
proceedings against us, and should never have forced us to spend so much of our
resources defending our professional position.

“To
counter the ARB’s lumbering intransigence, we set out reasoned objections
in a lengthy document which we prepared for the hearing by ARB’s PCC on
10 January 2006. That reveals the true character of the method of operation
which the ARB has used against us, compared with what the Chairman (Humphrey
Lloyd) was claiming in his open letter of June 2005 to Jack
Pringle PRIBA (then president-elect). It shows the flaws in
the legal advice that the ARB claims to rely on.

“We
know that others agree with us that the proceedings have been unacceptable and
inexcusable. We are willing to receive the apology which is due to us from the
ARB. But we reserve the right to give evidence to an independent and detailed
inquiry into the way in which the ARB contrives to misspend the registration
fees in this way.

“The
formal document setting out our objections included the following summary:

“‘(1) The
proceedings should be quashed in that the proceedings are, and are known to be:

a.
without any, or any sufficient, foundation in law or fact;

b.
vitiated by the Board and its Investigation Committee and Professional Conduct
Committee having a common interest in upholding the disputed validity of the
present Standard 8.

“‘(2)
Resistance to the Board’s request for information in the name of
“monitoring” or otherwise cannot be attributed to unacceptable
professional conduct on our part.

“‘(3) The
case against each of us depends upon an unsustainable proposition (as set out
in para.5 of the full document).

“‘(4) The ARB
policy in connection with Standard 8 cases has been skewed from the outset by
the propensity to disregard the Act, which has been shown by ARB Annual Reports
(mentioned in para.27 of the full document).

“‘(5) The
doubtful validity of the present proceedings was acknowledged more than a year
before the first preliminary hearing in the present proceedings (on 5 October
2005) in the Report from the Board Chairman (H. Lloyd) and the Registrar (R.
Vaughan) On “Promoting Greater Clarity and Flexibility for the Framework
of Architectural Regulation”, received by the Board in September 2004
(mentioned in paragraph 8 of the full document).

“‘(6) The
certainty or probability that we were entitled to resist the Board’s
request for information, as we have done, has not been denied by an
authoritative ruling known to the law’”.

R—L— J—
L—

M.A. (Cantab.), Dip. Arch,
RIBA, Dip. Arch., Architect, RIBA,

Cambs. Hants.

The full text of our
objections is available through www.aaruk.info, the website “About
Architects Registration in the UK”.

TEXT OF LETTERS SETTING OUT
REASONED OBJECTIONS TO DISCIPLINARY PROCEEDINGS, for the hearing by ARB’s
PCC on 10 January 2006.

Instead of making lengthy
excerpts, AARUK reproduces the whole text of the letters but with subdued
emphasis an the parts of lesser interest outside the actual proceedings.

See AARUK website for:

Notice of Application to Quash, being an elision of a notice dated 28 November
2005 and its continuation on 19 December 2005; Decision of
the PCC, 11 January 2006, with links to relevant parts of the Notice.

~~

#

74s2     4A2      An
architect's eloquence

TITLE: An
architect's eloquence: Defence in the case of ARB v J— L—

NOTE: See AARUK website  for the whole article with on screen
links.

Those
who have become intimately acquainted with the manoeuvrings of ARB to assemble
a case against two blameless architects (mentioned elsewhere on the AARUK
website) and who have heard or read the dignified defence the architects have
made to the charges, will have been left in no doubt where the merits lie, and
how far short ARB's performance has been from acceptable standards. AARUK here
reproduces one of these defences (of J― L―) which can be
taken as standing for both.

NB.
This is an unofficial transcript. the official transcript of the proceedings is
available from Harry Counsell & Co.

Defence in
the case of ARB v J— L—

Mr
J― L― :Until
now R― L― and myself have been proceeding with this case in a way
that we felt was beneficial to all architects in the UK. As our main
preliminary applications questioning the legal validity of ARB's actions
against us have been unsuccessful, I now need to concentrate on making the
Committee aware primarily of my own case.

I
first became registered as an Architect in 1975 after a nine year process at
College and in practice which at times was a great struggle to me. The day I
had my registration confirmed was the proudest moment of my life up to that
point, and I have continued to be immensely proud of being an architect, and of
being part of an extremely honourable self-regulating profession.

I
have the greatest respect for the ethos of the professional person, and I have
always tried to live up to that.

I
have been in practice on my own account for 24 years, and during that period
no-one to my knowledge has had occasion to complain about my conduct to ARCUK,
ARB or the RIBA.

Furthermore,
in all that period no Professional Indemnity Insurance company that I have held
a policy with has had to pay out one single penny in respect of any claim made
on my PII policies.

I
have refused to complete the Certificate of compliance as a matter of principle
from the s   When ARB first
instigated its PII policies, I regarded it as a huge insult to the whole
profession and every member of it. Becoming an architect is not something
achieved lightly, and I and many others have devoted our lives to it, when in
all probability we could have made ourselves much more wealthy by using our
talents to pursue other careers. That it is an honourable profession is
reflected in the level of complaints against it from the public dealt with by
your committee, which I understand, is 2-3 per annum out of a register of
30,000 people. No problem obviously exists. Nevertheless, ARB has found it
necessary to invent one.

I
quote from my letter to Mr. Vaughan dated 29/10/2002 after the issue was first
raised:

“As
to my knowledge I have never been reported to ARCUK or ARB by anyone for any
reason in 26 years of registration, you can be assured that I take a very dim
view indeed of your threat to report me to the Investigation Committee for failing
to take an action which I believe is outside your remit as a Registration body
to request of me.” And

“I
have been in practice under my own name for 20 years, and believe that I have
sufficient knowledge and experience to determine for myself the levels of PII
appropriate for my practice, and I am satisfied that at present we do have such
adequate cover.

May
I respectfully suggest that you stop hounding properly qualified and
responsible architects on a technicality that comes within their own jurisdiction,
and start addressing the real problem which is that 85% of Planning
Applications in the UK are submitted by non-architects, and that a substantial
percentage of those Applicants probably believe that they are using an
architect for this service when in fact they are not. This would be a much
better use of scarce funds in order to meet your objective of “Protecting
the consumer and safeguarding the reputation of architects”.

I
feel exactly the same now, if not more so, three years after that letter was
written.

tart of the
policy, and ARB has acknowledged this by saying in the Investigations Committee
decision “The Committee is aware that [J― L―] challenges the
status of the Code of Practice and it accepts that failure to comply with the
Code of Conduct does not of itself constitute unacceptable professional
conduct“

Despite
this, the charge that I face is “Unacceptable professional conduct”
Unfortunately, what constitutes this is nowhere clearly defined.  Clause 13 (4) of the Architects Act 1997
says

“Failure by a registered person to comply with the
provisions of the code– “(a) shall not be taken of itself to
constitute unacceptable professional conduct or serious professional
incompetence on his part;”

To
me the crux of this is the phrase “not be taken of itself ”. Quite
clearly that means that there must be some other event or circumstance that
occurs as a direct consequence of a lack of compliance with the code by the
architect. The most relevant consequence that should trigger disciplinary
proceedings is loss or damage to someone or some thing by virtue of an
architects act or omission.

The
guidelines in the Code of Conduct are in general extremely valid in the day to
day running of an architects practice. Most of them, if not followed correctly,
could result in loss and damage to a client or other party involved.

Not
having Professional Indemnity Insurance is a good example. If things go wrong
and the architect makes a mistake which could be covered by the insurance, and
is not, it will result in loss and expense due to the architects failure to
follow the guidelines. Ditto, for example, the failure to set out your terms
and conditions at the commencement of a project.

However,
it is simply quite impossible to imagine any loss or expense that could
possibly be caused to anyone as a consequence of my failure to tick the box on
the Certificate of Compliance.

By
no stretch of the imagination can failure to tick the box be construed as
“Unacceptable professional Conduct”. The same applies to a failure
to respond to correspondence received from the Architects Registration Board,
which is the second spurious charge against me. There is nothing in the Code of
Conduct, or in any rules made by ARB that requires Architects to answer ARB
letters at all, never mind within a specified period.

So
what does constitute Unacceptable Professional Conduct? When I returned to the
office after last Wednesdays appearance before you I came across this case on
the Internet, and I quote: “a recent example …… was where a
client had gone to an architect asking advice on building a house on a plot of
land that was for sale. The architect went to the Local Planning Authority and
found out from them that they wanted not 1 house but 6 houses on the land,
effectively increasing the value of the land six-fold. Instead of informing
their client, the architect offered to buy half the land from them in order to
make their life easier (financially); they then went and got planning
permission for 4 houses on the piece of land they had purchased, and were set
for a six-figure profit from that transaction.”

You'd
probably know the name of the firm involved if I told you, but you'll never
find out anything more about it, nor will any disciplinary proceedings by the
ARB or RIBA occur. This is because when the client sued (successfully), part of
the settlement deal was a confidentiality clause and a clause requiring that no
complaint be made to the professional bodies.

Now
that is what I call Unacceptable Professional Conduct, and neither myself nor
[R― L―] would ever even contemplate behaving in such an unethical
or unprincipled manner, but it is we who are before you, not the architects
involved in that case. They will never come before you. Has ARB got its
priorities wrong ?– it most surely has.

There
is only one charge against me that could possibly have any consequences that
could, as a result of which, be considered Unacceptable Professional Conduct,
and that is the lack of adequate professional indemnity insurance.

I
would now like to discuss the issue of Evidence, or rather the lack of it, on
this main charge, the only one of the three, which if true, could result in
loss or damage to innocent parties in certain circumstances.

You
have confirmed that there exists a burden of proof on ARB. In English Law, the
accused is held to be innocent until proven guilty. It is for ARB to prove our
guilt, not for us to attend today and produce our Professional Indemnity
Insurance Policies to prove our innocence. That is what these cases are about.

I
first wrote to Mr. Battersby on this point on May 5th 2005 (items 39 + 40)
saying:–

“It is
clear from the papers received that the Solicitor Complainant has no evidence
in support of this allegation. I would ask you therefore to advise the professional
Conduct Committee that this allegation cannot be substantiated and should in
consequence be struck out”

I
wrote to the Chairman of ARB, Humphrey Lloyd, on this point on 9th September
(Items 62 and 63) and have not received a satisfactory response.

In
previous letter to Mr. Lloyd dated 31st August 2005 (Item 56), I had pointed
out to him the lack of evidence in our cases. I suggested that he should have
asked to see the evidence against me in support of the allegation of failing to
maintain an appropriate level of professional indemnity insurance. I wrote:

“Had you
done so, and consequently having discovered that there is absolutely zero
evidence to support this charge, I feel sure that your legal background would
have caused you to question the validity of the charge being made against me by
the organisation of which you are the head. Where there is a burden of proof on
the accuser it is not acceptable merely to make an allegation and ask the
accused to refute it. In view of the fact that there is not one single jot of
evidence to support or prove this allegation, I feel that the only action open
to yourself is to ensure that the case against me is withdrawn immediately as
its prosecution totally discredits the Architects Registration Board, and you
personally as head of it”.

Mr.
Lloyd failed to respond constructively to this letter, so I must ask you
– how can you proceed with this case when there is absolutely no evidence
to support the allegations? And in the unlikely event that I did not have PI
Insurance, how could you possibly prove this if I did not admit it? It is not
possible to prove a negative.

As
it stands I am unwilling, as a matter of principle, to produce evidence of my
Professional Indemnity Insurance, and unable, as a matter of fact, to admit
guilt.

I
pointed this out to Mr. Battersby in my letter to him dated 23rd May 2005, but
it fell on stony ground. I wrote: “In order to prove that I do not carry
Professional Indemnity Insurance, the complainant would have to write to, and receive
a negative reply from every single provider of PII in the world, especially as
it is widely known that much of the cover provided for architects in the UK is
underwritten in China…..it is clear that such a process has not been
attempted in my case……….” “As I know, as does
ARB, that there is no evidence whatsoever to prove the charge against me, and
in the absence of such evidence, if the burden of proof is on the Complainant
in accordance with the above, then the charge is bound to fail and should, in
the interests of justice, be withdrawn. A failure to withdraw the charges will
involve me in wasted costs. Your jurisdiction as Clerk, it would appear,
provides you with the power under Rule 9 to prevent that from happening. If the
charge is not withdrawn, then the inference is that, contrary to presenting the
evidence which proves my guilt, the Architects Registration Board is inviting
me, at great expense to all parties, to attend a hearing in London in order for
me to prove my innocence. As the basis of English Law is that the accused is
innocent until proven guilty, and in the case mentioned above the PCC have
accepted that the Burden of Proof lies upon them, I contend that there cannot
legally be any requirement on myself to submit such proof of innocence to the
hearing.”

This
is exactly what has now happened. Can I expect to receive the fair and normal
justice demanded by English Law that we expect on occasions of this
seriousness?

So,
against Charge 1 – there is no evidence whatsoever, and nothing the
Committee has heard or will hear will provide evidence, nor could there be any
evidence.

What
I would ask the Committee to consider is this: in every item of my
correspondence to the Board and its representatives about the evidence in the
case, I have always expressed absolute certainty that there is not, nor could
there be, any evidence whatsoever against me to uphold the charge that I do not
hold an appropriate level of PI Insurance; Can I ask you now – do you not
question how I can be so completely certain of this? And if you do pose this
question, is not the answer totally obvious?

I have drawn the
picture, but I must ask you to join up the dots.

Without
any evidence to support this charge, I cannot believe that a Committee of
honourable people will find me guilty of it.

We
have repeatedly stated that we do not feel that the PCC is a truly independent
body, and you have made it clear that you hold the opposite view. I respect
your view, whilst not agreeing with it. However this is not the view of the
Architects Registration Board itself as is demonstrated by the Guidance Notes
it has published in support of the Code 8 provisions, which says “The
Board, acting through its Professional Conduct Committee, will view very
seriously any failure by an architect to maintain adequate and appropriate
Professional indemnity insurance.”

However,
what I can say is that I do trust your integrity and your ability to act
impartially, and so I put myself at your mercy.

If
you really, honestly and genuinely, believe that I am guilty of Unacceptable
Professional Conduct, then you must find me guilty, and I will accept the
consequences.

NB: The official transcript of the proceedings is available from
Harry Counsell & Co.

For the avoidance of defamation the decisions and sentences
unjustly given out by the PCC for publication in respect of the two architects
are not here reproduced.

See also Comment by an independent person who was
present and witnessed the proceedings "ARB Compliant"...:-

ARB compliant: Part 1

Conduct Committee proves
itself to be ARB Compliant

The
proceedings reported elsewhere on this website (see "Case Study" and
"An Architect's eloquence") were interesting in having proved beyond
reasonable doubt to the satisfaction of those who had been following the two
cases, not any failings on the part of the architects, but a prolonged series
of failings, great and small, on the part of the ARB itself.

The
Professional Conduct Committee's rulings at the preliminary hearing on 10/11
January 2006 will have pleased those whose opinion is that it is generally
expedient to let "regulation" prevail, where there is a conflict
between the rule of law on the one hand and the ambitions of persons claiming
to be in the business of regulating a profession on the other.

In
the morning of Thursday 11 January 2006 there had been some dwindling hope that
the Conduct Committee would have taken the opportunity to reinvent itself as a
truly "judicial" body, to use the Chairman's word at an earlier
preliminary hearing on 5th October 2005. (He is a solicitor who had been
nominated by the President of the Law Society under the Architects Act 1997.)

Would
the Committee, we had wondered, act with independence of mind, as it had
professed? Would it have the audacity and vigour to show its independence by
rebuking the ARB for harassing two innocent architects by compelling them, in
honour, to defend themselves against baseless charges being prosecuted against
them by the ARB's solicitor?

By
Thursday afternoon the outcome was known, after the architects had claimed that
the Committee should rule that the proceedings were a nullity. It then became
apparent to the architects themselves, and to those who had been carefully
following the proceedings from the sidelines, that the Committee, of two
solicitors and one architect, had failed to pay attention to the reasoned and
detailed objections which the two architects had put to the Committee at some
length. Instead, the Committee, at least by a majority, had again shown a
propensity simply to accept the unfounded assertions which had been made by the
ARB's solicitor.

A
week later (19/20 January) the cases of each of the two architects proceeded to
the hearing of the charges. By now, it was only to be expected that the
Committee would again pronounce against them in a way fully consistent with its
self-appointed task of upholding the ARB's pretensions, and would decide to
give effect to what the ARB had claimed it could "require" architects
to do.

Such
a decision would have been approved by anyone willing to promote the claims of
ARB to have extensive powers as a regulator of the profession; but would have
been deplored by anyone who believes that it is against the public interest to
let such a body exceed the powers actually allowed to it by Parliament for the
purpose of maintaining and publishing the Register of Architects.

And
so it has turned out.

~~

Further comment, illustrating how these decisions
cast a blight on the future prospect of fair hearings before the Professional
Conduct Committee ..:-

ARB Compliant: Part 2

As
always AARUK invites inquirers and policy-makers to judge for themselves,
but only after taking the trouble to review the points at issue fully, and with
an uncluttered mind: see the official transcript from Harry Counsell & Co
of all the hearings: jointly on 5 October 2005 and on 10, 11 and 19 January
2006, and then separately on 19 January.

On
no account can self-serving statements published on the ARB website as the
Decisions of the PCC be relied on for disclosing the full facts and issues.

The
cases cast a blight on the future prospect of a fair hearing in any future
cases before the Committee, which should be reconstituted with persons impeccably
qualified to perform the job unencumbered by the errant doctrines now
prevailing. In the meantime, all hearings should be suspended or withdrawn.

The
unjust result of the two cases heard by the PCC was about as odd as could be
imagined. It has raised serious doubts about the ability of the Committee
(Chairman, solicitor Peter Verdin) to perform its allotted function in
accordance with norms of English law and morality as commonly understood and
applied (or presumably Scots law in Scottish cases). As the hours of successive
hearings went by, it had become apparent that the Conduct Committee would
flounder beyond its depth, like the Board itself and its Investigation
Committee, should they ever stray from the silted shallows of the Board’s
illusions and inventions into clearer waters.

At
the very end of the proceedings, the Chairman purported to make a distinction
between the two cases on grounds which had not been mentioned at any stage by
the Board’s solicitor or by the Committee: not before the hearings, not
at the preliminary hearings, not at the full hearing, not at the hearing in
mitigation. He made the distinction solely for the purpose of deciding that one
of the architects should suffer a fine of £1,000 after deciding that the
other would suffer no more than a reprimand.

It
would be no exaggeration to say that independent observers who had been
following the cases at successive hearings were dismayed that this final
injustice should have been wantonly inflicted by a solicitor nominated by the
President of the Law Society, with lasting injury to the architect, in the name
of the Architects Act 1997. It would have been bad enough coming from a
professional colleague or a commanding officer; from this seat of judgment it
was intolerable. A body acting in that way is worse than useless: it is
dangerous.

--Rash

Was it rash of the Committee chairman, and at least
one other of its two members who had been selected to form the quorum of three
for the hearing of these cases, to have allowed themselves to act in this way?
Were they doing no more than they knew or could deduce had been expected of
them? After the event, the open letter of 7 June 2005 from the
Board chairman (Humphrey Lloyd, QC) and certain other of the documents
mentioned in the course of the proceedings can now be seen as pointing in that
direction. Do the documents plot a picture? Had the Committee “joined up
the dots”?

It
now seems so obvious, but neither of the two architects would have known at the
time that this would be an explanation for the otherwise inexplicable; and
perhaps if the Board chairman were now reproached, he could argue that the ARB
had not failed to make the position sufficiently clear, publicly or in
confidence, to those who needed to know.

--A device

Both cases had been about the Board’s disputed,
and still unjustified, claim to be entitled to require architects to give
information to the Board about PII cover by way of the “tick-box”
form. Given that the Board’s purpose had been to use the cases to obtain
from its Professional Conduct Committee a decision favourable to itself against
disbelieving architects, the Board was claiming that each of the architects
should be convicted of “unacceptable professional conduct” on three
separate charges.

As
a device for overcoming the lack of any evidence on the first and only
substantial charge, the Board’s solicitor claimed that the three charges
were “interlinked”. The Board’s intention, which in the
result has been aided and abetted by the Committee’s decisions, was to
publish the convictions as a threat and boast to others. The Chairman’s
minatory bombast in delivering the Committee’s decision was clean
contrary to the facts and evidence, and would be consistent with the Committee
having made up its mind before the hearing had even started; but it is likely
to have the desired effect, and to deceive those who do not know the facts of
the matter.

The
facts upon which the second and third of the three charges were based were
trivial or non-existent in themselves, and were of alleged significance only in
connection with the first.

On
the first charge, both architects were acquitted. But to secure the acquittal
they had been forced, by the Board’s deliberate method of initiating and
carrying on the proceedings, to defend themselves against the erroneous
contentions of the Board’s solicitor, until at length the Committee gave
a decisive ruling against his contention on an important point of evidence and
proof. On the second and third charges it was obvious that there was little or
nothing of any account.

--Character

That being the state of affairs when the time came
for the Committee to consider its verdict, the outcome would depend upon the
character of the Committee’s statutory function: was it, like that of the
Chief Executive (and Registrar), to act as the Board’s [ARB]
administrative enforcement agency; or was it to act judicially and protect
accused persons from injustice on the part of the Board? It should be noted
that there was no third party complaint whatsoever, but the Committee had quite
failed to appreciate the significance of this, probably because they had
allowed themselves to be misled by the Board’s solicitor on this as on
other points.

The
rulings of the Committee, inconsistent though they were, showed that the
Committee, or at least the Chairman, wished it to be known and published that
when the two functions were in conflict, the Board could rest assured that the
enforcement agency function would prevail.

--Denounced

But not content with that, the Committee went further
still. Knowing full well that the transcript of what he was saying would very
soon be published world wide on the ARB website, the Chairman [Mr Verdin]
denounced the architects for having defended themselves against the
Board’s accusations, in respect of which they had substantially been
acquitted; and further denounced them for taking up the time and expense of the
Board in defending themselves against a set of distinct charges which the
Committee had allowed the Board to present in “interlinked”
fashion. The interlinking had been deliberately contrived by the Board in such
a way that to defend themselves on the substantial charge for which they were
eventually acquitted, they had to defend themselves on the third, and in the
end be wrongly convicted on grounds seemingly invented by the Committee for the
occasion.

To
make matters worse, it was very obvious that at almost any stage of the
proceedings the Committee itself, if properly conducted, could have ensured
that the prolongation resulting from the Board’s method of setting out
and presenting the charges could have been avoided. But the result was that
these two blameless architects were blamed, without right of reply, both
for the error of the Board in putting a manifestly faulty set of charges and
pressing them to the bitter end, and for the Committee’s own
failure in proper and just case management.

~~

#

71
ma Home     PROFESSIONAL
STANDARDS--c discipline

77  ma Pfscdp  77s2     ze: Note on Part III of
the Architects Act and jactitation of power (19 Aug 2007)

TITLE:  Note on Part III of the Architects Act
1997

ARTICLE: See AARUK
website  for the whole article with
on screen links.

Should the legislation be
further amended to save the Board from the charge of jactitation of power?

Origin
: The provisions which are now set out in Part III of the 1997 Act were
among the amendments introduced (in 1996) to the Architects Acts 1931-1969,
under which the Register of Architects was first instituted and has been
continuously maintained. The 1996 legislation had been preceded by a
Departmental consultation on the paper “Reform of Architects
Registration”.

Professional
practice : It would be reasonable to claim that an underlying purpose of
the legislation has been to uphold the practice of architecture as a profession
serving the public, within the territory of the United Kingdom. That is to say
a profession whose practitioners are willing to act in accordance with certain principles
of ethical conduct, as understood in this country. (In some grave situations,
deeper feelings of betrayal, disgrace, infamy or disgust may arise.)

Restrictive
practices : From the latter part of the last century there has been an
emphasis on the use of legislative restraints enforced by statutory agencies in
place of voluntary restraints condemned as “restrictive trade
practices”. This has affected in turn larger economic activities which
had emerged from the previous century, including trade unions and retailing,
businesses engaging in commerce, finance, industry, transport and
communications, and lesser economic activities (measured by turnover) including
the practice of traditional and newer professions. (Architects and commercial
lawyers will have no difficulty in recognising this as happening within the
development of trading activity and economic arrangements on the global scale.)

Conflict
of interest : As a result, residual questions of ethical conduct (for
professional practitioners) will usually be connected in some way with
preventing, or at least declaring, a conflict of interest adverse to the ideal
of the community of interest of the practitioner with those affected by the
product of their work: architecture as a social art. This is clearly to be
distinguished from a practitioner being bound by particular rules or
regulations which exist to prescribe the manner in which any of the authorised
functions of a registration body or other executive agency are to be performed;
and also to be distinguished from an arrangement for controlling the use of a
trade name or mark in connection with commercial franchising.

The
Board’s duties : In this context it is important to understand that
the immediate purpose of Part III as enacted has never been to enable the Board
(or any committee or officer of the Board) to enforce demands of any kind upon
registered persons concerning professional conduct. On the contrary, it imposes
a series of statutory duties upon the Board itself and its Professional Conduct
Committee, the overriding purpose of which is undeniably to protect accused
persons from misguided, spiteful or extravagant allegations which would result
in undeserved disciplinary orders or other injustice.

Accused’s
defence : At the same time, accused persons are free to use the rights
which become available to them at successive stages in connection with
disciplinary proceedings, but they are not obliged to. For whatever reasons
(and it ought not to be assumed that they are other than honourable), an
accused person may prefer to waive any of those rights even to the point of
foregoing the right to registration. An accused may, perhaps, have come to see
that the proceedings would be likely to result in a denial of justice due to a
certain manifest and inveterate bias.

Comparisons
: There is really no other way of properly understanding the provisions as
enacted. If there were any doubt about that, the Architects Act could be
contrasted, generally and in detail, with others, such as those affecting insurance
brokers or the supply of financial services, or the several branches of the
legal profession, or anyone engaged in building operations.

Further
confirmation : To complete the picture, and confirm the above by careful
attention to the Act itself, the effects of Parts II and IV should be taken
into account with section 15 of Part III.

The
arrangement of the Act as a whole helps to show the interaction of section
15(1) of Part III – “Discipline” with section 7 in Part II
– “Registration etc.”, and with section 21 in Part IV
“Use of title ‘Architect’”. Thus a registered person
could have been convicted in connection with an offence under section 7
(obtaining registration by false representation: level 3 offence) or, under section
21, of a quite different offence connected with section 20(4) (level 4
offence). Section 15(1)(b) would then become operative, if those offences were
within the meaning of “criminal offence” and provided that the
offence had “material relevance to the offender’s fitness to practise
as an architect” (which could be indisputable) (up to level 4 offence,
s.16(2)).

(Architects
might consider a likelier case for the application of s.15(1)(b) would be a
more than minor offence under Building Regulations or Health and Safety requirements,
which would also be an offence irrespective of the status of the offender as an
architect or registered person. Whether or not it is thought that s.15(1)(b)
would operate as an additional deterrent, it seems unlikely that registration
of an offender would have secured for the public more effective protection than
would otherwise have been obtainable. Any connection with compensation for
loss, damage or injury is too hazy or non-existent.)

It
is important at this point to remark that if the facts and circumstances of
such an offence had been such that the convicted person became liable to a
disciplinary order under section 15, it would be by reason of what the Act
itself had expressly prescribed in the event of a registered person’s
conviction of a criminal offence material to the fitness to practise as an
architect. It would not be by reason of any duty or obligation which the Board
had claimed to be able to originate and enforce (such as the tick-box PII
certificate or for “monitoring” compliance: see Acting
Registrar’s letter to I S et seq.). This is irrespective of the validity
of Standard 8 in other respects. On jactitation of power see Status of the ARB
p.4 and Case Study 1 Application to Quash paragraph 34 (e) - (i).

In
particular, in the case of Part IV, the statutory purpose of any rules under
section 20(4) can only be to enable certain business entities to claim, assert
and have the benefit of the exemption from prosecution which the Act permits
them to have at large under section 20(3). (It would strain meaning to the
point of dissolution to treat that as an “obligation” owed to the
Board by any such business entity.) When all is said and done, the
Board’s function, as enacted, is essentially to provide a registration
service for qualified practitioners. The transcript of the proceedings in Case
Study 1 seems to show that this was not understood by the Board’s
solicitor responsible for presenting the case.

Conclusion
: It is submitted that these instances show conclusively that there is no
room for putting on the Act a construction which would either enable the Board
to claim to originate a duty to inform the Board, such as it has been asserting
in Code Standard 8, or would enable the Board’s Professional Conduct
Committee, directly or indirectly, to enforce such a claim (as made in Acting
Registrar’s letter to I S et seq.).

AUTHOR:

An AARUK contributor, 19
August 2007

~~

END OF APPENDIX##

SUPPLEMENT as at 16 May 2009

TABLE
I [HOME PAGE LIST]

oo>

oo ma Home      HOME

o1 ma Home      Architects
Act

o2 ma Home      Architects
Registration Board

o3 ma Home      Registration

o4 ma Home      Registration-a
education

o5 ma Home      Registration-b
competence to practise

o6 ma Home      Professional
standards-a the code etc

o7 ma Home      Professional
standards-b PII

o8 ma Home      Professional
standards-c discipline

o9 ma Home      Use
of title

ou  ma Home     HOME PAGE, MAIN PANEL,
upper

ol ma Home       HOME
PAGE, MAIN PANEL, left, lower, latest

TABLE
I A [HOME PAGE LIST EXPANDED items]

o11 ma Home    zx:
[LINKS TO] OTHER WEBSITES-a chartered bodies (RIBA and others)

o12 ma Home    zx:
LINKS TO OTHER WEBSITES, and SCANNED-b legislation

o13 ma Home    zx:
LINKS TO OTHER WEBSITES-c historical notes

o14 ma Home    MAIN
PANEL

o14 ma Home    ou         MAIN
PANEL, upper main and left [ou ma Home]

ou  ma Home     ous1     zn: HANDLIST "Architect as a working
title…” html [=o21 ma Home]

ou  ma Home     ous2     zn: HANDLIST "Architect as a working
title…” pdf   [=o22
ma Home]

ou  ma Home     ous3     On official statements inconsistent with the
legislation html [=o23 ma Home]

ou  ma Home     ous4     On official statements inconsistent with the
legislation pdf   [=o24 ma
Home]

[o14 ma Home   MAIN
PANEL]

o14 ma Home    14s1     zx: RIBA paper Status
of the ARB (May 2003)

o14 ma Home    14s2     zn: RIBA paper Status
of the ARB (May 2003) (version c.p7)

o14 ma Home    14s3     zx: Michael
Highton‘s report adopted by RIBA Council in 2004

o14 ma Home    14s4     zn: Michael
Highton‘s report adopted by RIBA Council in 2004, cltd version

o14 ma Home    14s5     zx: Wikipedia articles
on Architects Registration in the UK

o14 ma Home    14s6     zx: unofficial version
of the Architects Act, as amended in June 2008 at RIBApedia

o14 ma Home    14s7     zn: unofficial version
of the Architects Act, as amended in June 2008 saved version

o15 ma Home    o15s1   ze: Point of view on statutory registration (6 Nov2006) [=
ols11]

o16 ma Home    LATEST from 2006 and 2007
including CASE STUDIES 1 AND 2 (PCC)

ol ma Home       HOME
PAGE, left, lower, latest

ol ma Home       ols1      Questionable PCC
decisions: Case Study 1 (PCC} ( 19/21 January 2006 )

ol ma Home       ols2      2 Questions ( 20
February 2006 )

ol ma Home       ols3      The "Wider
Remit" ( 24 February 2006 )

ol ma Home       ols4
Election Results
( 8 March 2006)

ol ma Home       ols5      A new Registrar (
17 March 2006)

ol ma Home       ols6      Issues,
explanations and suggestions ( 27 March 2006)

ol ma Home       ols7      The duty to
consult ( 24 March 2006)

ol ma Home       ols8      Another regime? (
30 March 2006)

ol ma Home       ols9      Rule 20 change (
29 May 2006)

ol ma Home       ols10    The ARB's examinations ( 27
June 2006)

ol ma Home       ols11    Point of view on statutory
registration (6 November 2006) [=o15
ma Home]

ol ma Home       ols12    PCC case study 2 (28 March
2007)]

ol ma Home       ols13    Judicial interpretation of
Part III (2 April 2007)

ol ma Home       ols14    PCC case study 2 Part 2 (9
May 2007)

ol ma Home       ols15    Wikipedia (31 May 2007)

ol ma Home       ols16    Architectural education in
the UK (2 June 2007)

ol ma Home       ols17    Jactitation of power (22
August 2007)

ol ma Home       ols18    "Complete defence"
QC advises (19 September 2007)

ol ma Home       ols19    Judicial nonsense (20
September 2007)

o17 ma Home    LATEST from 2008 and 2009
including CASE STUDIES 2 (PCC)] AND 3 (EU)

ol ma Home       HOME
PAGE, left, lower, latest

ol ma Home       ols20    202005/36/EC amendments
– comments (27 Sept 2007 - updated 6 June 2008)

ol ma Home       ols21    The June 2008 amendment of
the Architects Act (20 June 2008)

ol ma Home       ols22    Questionable PCC decisions (5
August 2008)

ol ma Home       ols23    Judicial review "plainly
justified" (20 October 2008)

ol ma Home       ols24    Compliance with EU
requirements (Case Study 3) (3 November 2008)

ol ma Home       ols25    The June 2008 amendt of the
Architects Act (… consequences) (4 November 2008)

ol ma Home       ols26    Parliamentary written replies
(4 November 2008)

ol ma Home       ols27    Variations to the Code (13
January 2009)

ol ma Home       ols29    The 2009 election (6 February
2009)

ol ma Home       ols30    Status of the Registrar ...
as Returning Officer (6 February 2009)

ol ma Home       ols31    Conflicts of Interest:
s.4(2A) Architects Act(10 Feb/ 21 Apr 2009) (CS 3 Pt 2)

ol ma Home       ols32    Enforceability of the Act in
doubt (Case Study 3, Pt 3)(22 April 2009)

ol ma Home       ols33    The right to have a name
removed is thwarted (27 April 2009)

ol ma Home       ols34    RIBA’s new chief
executive (6 May 2009)

ol ma Home       ols35

ol ma Home       ols36

ol ma Home       ols37

o18 ma Home    LATEST from 2010

ol ma Home       ols--

~~

TABLE IV

Expansion
of items in Synopsis for CASE STUDY LISTS etc

TABLE IV A 1 Case
Study 1 (PCC) (January 2006) [74  ma
Pfscdp]

FROM THE TABLE

71  ma Home   PROFESSIONAL
STANDARDS--c discipline

72  ma Pfscdp   Judicial interpretation relating to Part III of the Act
(2 April 2007)

72  ma Pfscdp  72s5     High Court holds
"serious" in Part III of the Act means SERIOUS

73  ma Pfscdp  Discipline and questionable PCC
decisions (January 2006)

74  ma Pfscdp  Case Study 1  (PCC) (January 2006)

74  ma Pfscdp 74s1     [4A1]
ze: Explanatory introduction: Disciplinary proceedings 10 January 2006

74  ma Pfscdp 74s2     [4A2]
ze: An architect's eloquence

75  ma Pfscdp  Case Study 2 (PCC): 2007

76  ma Pfscdp  Case Study 2 (PCC): 2008, 2009

77  ma Pfscdp   Practitioners' Registration Service: Further amendment?
(19 August 2007)

77  ma Pfscdp  77s2     ze: Note on Part III of
the Architects Act and jactitation of power (19 Aug 2007)

~~

EXPANSIONS OF 74  ma Pfscdp

1

74 ma Pfscdp Case Study
1  (PCC) (January 2006) [rows 296 to 441 of aaruklist o2 (spreadsheet)]

74s1     4A1      Explanatory
introduction: Disciplinary proceedings 10 January 2006: a-b

74s1s1  4A1a                 Notice
of Application (by architects J-- L-- and
R-- L--) to Quash

74s1s2  4A1b                 Decision
of PCC 11 January 2006, with links to Application

SUB-TABLE: EXPANSION OF 74s1,
LISTING CONTENTS: 4A1

74s1     4A1      Explanatory
introduction: Disciplinary proceedings 10 January 2006

74s1s1  4A1a                 Notice
of Application (by architects J-- L-- and
R-- L--) to Quash

74s1s1  4A1a1                           NOTICE
OF APPLICATION FOR PRELIMINARY RULINGS

74s1s1  4A1a1                           --Intro
and preamble

74s1s1  4A1a1                           --Application
stated in three parts

74s1s1  4A1a2                           "The points and information mentioned above" [74s1s1      4A1a1]

74s1s1  4A1a2         Para.No.     Documents etc mentioned
and/or cited

74s1s1  4A1a 2
2         Jane
Rees: a member of the Board [ARB]

74s1s1  4A1a 2
2         --chairperson of Investigations Committee

74s1s1  4A1a 2
2         --formerly Acting Registrar from September 1999 - April
2000

74s1s1  4A1a 2
2         --Registrar of the Insurance Brokers Reg. Council
1986-1998

74s1s1  4A1a 2
2         Insurance Brokers (Registration) Act 1977

74s1s1  4A1a 2
2         Financial Services and Markets Act 2000

74s1s1  4A1a 2
5         Financial Services Act 1986 s.47A

74s1s1  4A1a 2
5         R. v. SIB and IBRC ex parte IFA and LIBM. QB Divi.
Ct, [1995] 2 BCLC

74s1s1  4A1a 2
7         Letter1 Nov 2001 from RIBA to ARB Registrar (R.Vaughan)

74s1s1  4A1a 2
7         Letter
23 Dec 1999 from Acting Registrar to
I-S-

74s1s1  4A1a 2
7         Letter
19 Jan 2000 from Acting Registrar to
I-S-

74s1s1  4A1a 2
7         Letter
27 Jun 19 Jan 2002 from Registrar to I-S-

74s1s1  4A1a 2
8         Report
presented to Board 16 Sept 2004 by
H.Lloyd, chairman

74s1s1  4A1a 2              11         Paper
issued May 2003 by RIBA: SARB

74s1s1  4A1a 2              15         In
re P. (a Barrister) [2005] 1 WLR 3019

74s1s1  4A1a 2              16         RIBA
Journal June 2003

74s1s1  4A1a 2              18         Campbell v Hamlet [2005] 3 All E.R. p.1117

74s1s1  4A1a 2              20         Dr
Kelly, first chairperson of the Board
[ARB}

74s1s1  4A1a 2              22         Opinion
of T.Dutton
QC obtained for the advice of the
Board

74s1s1  4A1a 2              24         Mr.R.Henchley, a solicitor and Board member

74s1s1  4A1a 2              25         ARB
Annual Report 2001 (Standard of Proof)

74s1s1  4A1a 2              25         ARB
Agenda / Minutes November 2005

74s1s1  4A1a 2              27         Registrar
(R.Vaughan), Chairperson IC (J.Rees)

74s1s1  4A1a 2              27         Dr B.Kelly in ARB Annual Report 1999/ 2000

74s1s1  4A1a 2              27         Insurance
Brokers Registration Council

74s1s1  4A1a 2              27         Securities
and Investments Board

74s1s1  4A1a 2              27         Financial
Services Act 1986

74s1s1  4A1a 2              27         Financal
Services and Markets Act 2000

74s1s1  4A1a 2              27         R.
SIB and IBRC ex parte IFA..... QB Div.Ct
1995] 2 BCLC

74s1s1  4A1a 2              28         Financial
Services Act 1986

74s1s1  4A1a 2              30         Copyright,
Design and Patents Act 1988 s.178

74s1s1  4A1a 2              30         Mr
Verdin, transcript of hearing 5 Oct 2005
p.19 ln.6

74s1s1  4A1a 2              32         In
re P. (a Barrister) [2005] 1 WLR 3019,
Colman J. at para.10274s1s1      4A1a 2              34(a)     Deregulation
& Contracting Out Act 1994

74s1s1  4A1a 2              34(d)     Insurance Brokers (Registration) Act 1977

74s1s1  4A1a 2              34(h)     Financial Services Act 1986

74s1s1  4A1a 2              [34A]    Chronological list of References 1977-2005

74s1s1  4A1a 2              37         Letters
(a)-(g) between ARB and an architect ,16
Jan to 18 April 2002

74s1s1  4A1a 2              41         Letter
9 Dec 2005 to P.Cadman of ARB solicitors
Russell Cooke

74s1s1  4A1a 2              41         John
Gould, senior partner of Russell Cooke

~~

74s1     4A1      Explanatory
introduction: Disciplinary proceedings 10 January 2006

74s1s2  4A1b                 Decision
of PCC 11 January 2006, with links to Application

74s1s2  4A1bn                           NOTE:
The AARUK website version of the decision given by the chairman 74s1s2  4A1bn                           (Mr
P.Verdin) at the PCC hearing has links from the words listed below to 74s1s2   4A1bn                           the
application (4A1a) where the appropriate parts can be found passim

74s1s2  4A1bn                           on
screen by using the Find function.

74s1s2  4A1b                Link
words

74s1s2  4A1b                 common
interest

74s1s2  4A1b                 legal
advice

74s1s2  4A1b                 evidence

74s1s2  4A1b                 paragraph
11 (SARB)

74s1s2  4A1b                 burden
and standard of proof

74s1s2  4A1b                 paragraph
20 (Dr Kelly...)

74s1s2  4A1b                 regulator

~~

EXPANSIONS OF 74  ma Pfscdp

2 / SUB-TABLE: EXPANSION OF 74s2, LISTING CONTENTS: 4A2

74s2     4A2      An architect's
eloquence: a - d

74s2s1  4A2a                 Defence
(in the case of ARB v. J-L-)

74s2s1  4A2a     Documents etc
mentioned and/or cited

74s2s1  4A2a                 Letter
to Registrar (Vaughan) 29/10/2002

74s2s1  4A2a                 Architects
Act 1997 s.13(4)

74s2s1  4A2a                 Letter
to clerk (Battersby) 5 May 2005

74s2s1  4A2a                 Letter
to ARB Chairman (Lloyd) 31 August 2005

74s2s1  4A2a                 Letter
to clerk (Battersby) 23 May 2005

74s2s1  4A2a                 Rule
9

74s2s1  4A2a                 Guidance
Notes, Code 8 provisions

74s2s2  4A2b                 Comment:
PCC proves itself to be ARB compliant

74s2s2  4A2b     Keywords

74s2s2  4A2b                 "regulation"

74s2s2  4A2b                 "judicial"

74s2s2  4A2b                 President
of the Law Society

74s2s2  4A2b                 "require"

74s2s2  4A2b                 public
interest

74s2s3  4A2c                 PCC
decisions and orders in respect of architects J-- L-- and  R-- L--

For the avoidance of defamation the decisions and sentences
unjustly given out by the PCC for publication in respect of the two architects
are not here reproduced.

74s2s4  4A2d                 Further
comment: PCC proves itself to be ARB compliant, Part 2

74s2s4  4A2d1                           zx:
Open letter 7 June 2005 from the Board [ARB] chairman (H. Lloyd, QC)

~~

END OF TABLE  IV A
1 Case Study 1 (PCC) (January 2006)
[74  ma Pfscdp] AND
SUB-TABLES

###

TABLE
V

Special items

o12 ma Home    zx: LINKS TO OTHER WEBSITES, and SCANNED-b
legislation

121 ma Lgsln     121s1   Architects Registration Act, 1931

121 ma Lgsln     121s2   Architects Registration Act, 1938 with amendments to 31
December 1975

121 ma Lgsln     121s3   Architects Registration Act, 1938

121 ma Lgsln     121s4   Building Act1984, parts

121 ma Lgsln     121s5   Reform of Architects Registration, DoE consultation paper 19
July 1994 (o38)

13 ma ArcRB     13s1     Scanned booklet
containing ARCUK Regulations 24 October 1932

15 ma ArcRB     15s1     Scanned letter from
first ARB Chairman (Dr Barbara Kelly) to registrants

17 ma ArcRB     17s3     Scanned DoE paper of
19 July 1994 "Reform of Architects Registration" (o38)

###

####

END