Architects Act 1997 : questions concerning the amendment of June 2008 (AARUK Case Study 3, Part 2) 21 April 2009
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:
∙ 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”).
∙ 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.
∙ 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.
∙ 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 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 VII 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.
21 April 2009