In the matter of a charge brought under the Architects Act against I― S―
Applications to the Professional Conduct Committee (continued), 27 March 2007
Purpose of submission
The law pertaining to bias
Allegations made against me
Outline of the Committee’s task
The substantive issue
The Code as no more than guidance
Section 23 rules
The board’s policy
The board’s advice
Reasonable prospect of being correct
Possibility of bias in the Committee
The relevant question
The remedy - exclusion of those with an interest
Those who have been involved with the formulation, establishment, revision or promulgation of Code Standard 8
The Chilton guidelines
The question for today
The right to natural justice
Two further illustrations
The nature of unacceptable professional conduct
Unacceptable professional conduct – recognition or invention?
1. On 5 December last it was suggested that I should re-present this application (Transcript page 78 line 28) using a framework for my arguments. So on the strength of that suggestion I have re-cast the way that I shall present it.
2. Before I start I wish to inform the Committee that I shall not today make the application that was the first on my notice. This for two reasons.
3. First, the Committee is aware that on 5 December I was ready to submit a detailed and reasoned application asking the Committee to stay these proceedings until the Registrar replaced the Clerk. In fact I began to make it.
4. The Committee however gave every appearance of being unsympathetic to the approach I had chosen to make, and made a number of interjections of which I have taken notice.
5. Secondly, since the 5th December, as far as I am aware, the Clerk has shown nothing of the traits that I sought to object to. Indeed, the apparent complacency which had been the cause of my concern (and which was contrary to the safeguard of PCC Rule 9) has had no recurrence.
6. Furthermore, when it came to opposing the board’s application on 5 December last and finding that the Committee accepted my reasoning, this will also have assisted, I hope, in securing some recognition of the possibility of merit in my argument. So the imperative for the removal of the Clerk, even though doubts remain, has diminished.
7. For this reason I now apply to withhold my first application, reserving the right to make it should there be any future occasion when the Clerk acts in a manner that I believe is unfair to me. If this consent is not given, then I am prepared to make the application after the application concerning committee members.
8. I now therefore intend to proceed to the application concerning committee members.
9. Application: that these proceedings shall be adjourned so long as any of the following are designated to hear the Charge:
a. any member of the Board;
b. any past member of the Board
c. any person that has been involved with the formulation, establishment, revision or promulgation of Code Standard 8;
d. James Cuthbertson, Dõnal Hutchinson, Christine Mogridge, Barbara Saunders and Peter Verdin.
10. Those I have named have been involved in deciding previous Code Standard 8 cases. Since making this application, there have been several other similar decisions involving other PCC members. They are Stephen Brookhouse, Angela Deacon, George Oldham and Linda Read. I would be grateful if their names now be added to the list.
Purpose of submission
11. My purpose today is to demonstrate that this application is justified and should be allowed. I shall endeavour to explain that there is ample reason why any person who is in one of my categories, or who is named, should not hear the substantive case against me and should, therefore, recuse themselves from this case, so necessitating an adjournment. I shall give reasons to show that if any of these people make or contribute to a finding of guilt against me, they will introduce a real possibility of bias – or at the very least, give the appearance of bias.
12. These descriptions: “possibility of bias” and “appearance of bias” have been given high judicial scrutiny. And in order for the Committee to reach a fair appreciation of this, it is necessary, briefly, to examine the law.
The law pertaining to bias
13. The test on apparent bias was comprehensively described by Lord Hope of Craighead in Magill v Porter and Magill v Weeks  1 All ER 465, while approving a paragraph of the judgment of the Master of the Rolls in R v Gough  AC 646. After considering a number of decisions he gave this summary  :–
102. In my opinion however it is now possible to set this debate to rest. The Court of Appeal took the opportunity in In re Medicaments and Related Classes of Goods (No 2)  1 WLR 700 to reconsider the whole question. Lord Phillips of Worth Matravers MR, giving the judgment of the court, observed at p711A-B, that the precise test to be applied when determining whether a decision should be set aside on account of bias had given rise to difficulty, reflected in judicial decisions that had appeared in conflict, and that the attempt to resolve that conflict in R v Gough had not commanded universal approval. At 711B-C he said that, as the alternative test had been thought to be more closely in line with Strasbourg jurisprudence which since 2 October 2000 the English Courts were required to take into account, the occasion should now be taken to review R v Gough to see whether the test it lays down is, indeed, in conflict with Strasbourg jurisprudence. Having conducted that review he summarised the court’s conclusions, at pp 726H-727C:
“85. When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment of the test in R v Gough is called for, which makes it plain that it is, in effect, no different from the test applied in most of the Commonwealth and in Scotland. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.”
14. Lord Hope continued:
103. I respectfully suggest that your Lordships should now approve the modest adjustment of the test in R v Gough set out in that paragraph. It expresses in clear and simple language a test which is in harmony with the objective test which the Strasbourg court applies when it is considering whether the circumstances give rise to a reasonable apprehension of bias. It removes any possible conflict with the test which is now applied in most Commonwealth countries and in Scotland. I would however delete from it the reference to “a real danger”. Those words no longer serve a useful purpose here, and they are not used in the jurisprudence of the Strasbourg court. The question is [and here is the definitive test] whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.
15. This next concept is that issues relating to partiality or bias extend to include
“every judicial decision-maker”,
which was the broad definition brought to the term “judge” by the Court of Appeal in Locabail (UK) Ltd v Bayfield Properties Ltd & Anr  EWCA Civ 3004. Such a person – and here I read :
“who allows any judicial decision to be influenced by partiality or prejudice deprives the litigant of the important right to which we have referred and violates one of the most fundamental principles underlying the administration of justice.”
16. From this we may see that any person who takes judicial decisions has not only a duty to be impartial, but by the rule in Magill, must also pass the objective test of the fair-minded and informed observer. Bias, or the likelihood of giving an appearance of bias, is the question that I submit the Committee must examine.
Allegations made against me
17.  There are two allegations against me. The first, that my firm carries no professional indemnity insurance, cannot be sustained by evidence. As to the second allegation, in due course and at the appropriate stage of these proceedings I shall be making admissions concerning the facts, namely:–
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.
Outline of the Committee’s task
18. The Committee will therefore not be required to make any finding of fact in this case, and there shall in consequence be no necessity to admit evidence other than to consider documentation which I trust in the present circumstances it will not be necessary to prove.
19. The Committee is left merely with the task of examining the law and deciding on its proper application. I respectfully suggest that the Committee cannot create law or decide it; but must instead fairly and objectively discover its correct application to my case.
The substantive issue
20. The key to the case – and I submit that if it comes to it, this will be the crucial issue for the Committee’s scrutiny – is whether or not Code Standard 8 is enforceable. If it is not, then the remaining allegations against me must fall away. So I shall now take you to the Code.
21.  The Code says:
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.
The Code as no more than guidance
22. As a first step in this examination (that is, whether this Code Standard in enforceable) I turn to the provisions of section 13(4) of the Act . This section sets down a clear proviso, in unequivocal terms:
13(4) 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.
23. By any interpretation the meaning of this subsection is straightforward. It is written in simple language, is intelligible, unambiguous and is in complete harmony with the provisions of section 14 . Section 14 deals not with infractions of the Code but with instances of “unacceptable professional conduct” (which goes to the ethics of our profession), or to “serious professional incompetence” (which goes to the quality of the services that we provide). Any ethical shortcoming or incompetence must be objectively ascertained by the Committee – by taking the Code into account (subsection (4)(b)); but the Committee is constrained (subsection (4)(a)) from finding that a pure breach of the code is a fault. That, expressly, is beyond its jurisdiction.
24. As to the attitude of the board to the Code, it is constrained to accept that any code made under section 13 is a code and not a set of regulations. The code provides guidance, not rules. It follows that the Code cannot be an instrument that gives the Board powers to create categories of failure. It allows the board only to describe categories of failure that by any normal objective ascertainment would be considered to fall short of the standards generally to be expected of members of my profession.
25. Nor can the Code permit the Board to create duties to itself where no duty has existed and where the Act permits no such duty to exist. For public bodies, “what is not permitted is prohibited” – the subject of a 1997 lecture by Tony Child, a partner in Mayer Brown Rowe and Maw who later gave me advice on the lawfulness of the board’s actions while I was a board member. He said:
“Now, as some of you will remember, before 1875 there was a lively debate as to the ultra vires rule. The question was whether local authorities could do only that which statute authorises or whether they could do anything that was not prohibited by statute. In 1875, the House of Lords resolved the matter in favour of the view that a statutory corporation can do only that which it is empowered by statute to do but news of this recent decision has not yet penetrated the furthermost corners of the legal profession, and there are Counsel who will still give you advice that if there is no statutory prohibition, a particular course of action is therefore within the powers of a statutory body. I recommend that you do not rely on such advice.
“The test is not reasonableness. It is true that statutory bodies must exercise such powers as they have reasonably, but it is not the case that if something is reasonable, or to the advantage or convenience of the public, that it is therefore within the powers of the statutory body.”
26. I think the point that Mr Child, whom Chambers and Partners Directory 2007 incidentally describes as “brilliant”, was that the doctrine of “what is not permitted is prohibited” is now considered as trite law. Even so, here I submit the relevant case law:
26. The rule for discerning whether a statutory corporation was acting ultra vires was expressly approved by Lord Selborne in Ashbury Railway v Riche [323A] when he broadened an earlier statement of the law which applied merely to a “company incorporated by Act of Parliament” . He broadened it to “Statutory corporation” – which of course describes the board because by section 1 of the Act it is described as “a body corporate”. Lord Selborne said (at page 693 [323U]):–
“I only repeat what Lord Cranworth, in Hawkes v Eastern Counties Railway Company stated to be settled law, when I say that a statutory corporation, created by Act of Parliament for a particular purpose, is limited, as to all its powers, by the purposes of its incorporation as defined in that Act.”
Section 23 rules
28. Now although section 13 does not permit the board to make any kind of rule or regulation, there have been instances where in the past the Board has sought to rely on s.23 of the Act to support these special provisions in the Code ; but the Act does not permit that either. It says:
 23(1) – The Board may make rules generally for carrying out or facilitating the purposes of this Act.
29. This provision does not, it will be noticed, give freedom to the Board to make rules for facilitating its own purposes and desiderata, irrespective of whether it considers such rules to be “in the public interest” or “protecting the consumer”; for as this section clearly says, rules can be made only for “carrying out or facilitating” the purposes of the Act. Nor can it be argued that the provisions of section 13(4)(a) can in any manner be affected by rules made under section 23. If the Act had intended that, then it would have stated it. It is therefore transparently clear that the Code can never be more than guidance; guidance for the PCC, and guidance for those on the register. Beyond doubt, the Code can never stand as a rule: it is not.
The board’s policy
30. In 1999 the board decided that it would like to know whether registered persons were insuring themselves. There are separate questions over the legitimacy of seeking out such information, but it is the fact that Code Standard 8 (introduced in 2001), employs the language of obligation rather than guidance and is clearly framed as if it were a rule demanding information. That is an issue which is near the kernel of my objection and one that I shall be bringing to the substantive hearing in due course.
31. Now as I have just explained, the board cannot legitimately make Code Standard 8 into a rule under section 23 because that provision has been made only for facilitating the purposes of the Act, not for creating any new purpose (no matter how desirable); and the Act contains no purpose which can provide the basis of this rule: it is silent. Even so, and despite this lack of justification, Code Standard 8 , as we have heard, contains the word “must”. It is clearly intended to be understood as being much more than the mere guidance of a Code. I repeat the relevant extract:
8.3 – Architects must ... provide such evidence in such form as the Board may require demonstrating compliance with this standard.
32. This misuse of the code was the root of my disagreement with the Board that started in 1997 when the first chairman Dr Kelly decided on the board’s “wider remit” and which I have argued against ever since. Given the attitude of the board, I shall now examine the legal advice on which it must be presumed its assertions are based or else reinforced.
The board’s advice
33. When I was elected to the Board and challenged the status of the Code from within, my observations were countered with advice from Mr Timothy Dutton of Queen’s Counsel, obtained for that purpose. In his written opinion, Mr Dutton said this :–
[455 – para 30] Even if there were a sustainable argument that[,] for a statutory body to impose a rule upon its members that they must insure in a particular way, did require a rule or regulation which expressly authorized such a requirement, one has to bear in mind that the Board does not operate under the Code arrangement in the same way as other professions (such as solicitors and barristers) do with their PII requirements. There are the following distinctions:
34. I read on:
The Code does not have the same status as delegated legislation. It is a “Code” and does not contain a set of “Regulations” which define law. It is a document containing principles, some duties, and it sets broad standards. Whilst the Code is obviously important as a standard-setting document for the profession, and must be taken into account by the Professional Conduct Committee when hearing a complaint, a breach of the Code does not automatically mean that an architect is acting unlawfully, nor does it mean that he will automatically be found for one of the two forms of statutory wrong which the Professional Conduct Committee may find established under section 14(3). The Act expressly states that a breach of the Code by itself does not mean that either of the statutory offences is established.
35. Let me take a clause from that – and it’s central to the issue. The advice:
“A breach of the Code does not automatically mean that an architect is acting unlawfully”
is unequivocal. It makes a clear distinction between “A breach of the Code” and “acting unlawfully”. Mr Dutton’s description of the difference shows that he finds no difficulty with the Code having a wider scope than what may be brought into consideration by the PCC.
36. It follows that Mr Dutton is content that some breaches of the Code may be decided as being entirely lawful. There is no magic in this: he reasons it at the end of the passage I have extracted, where he says:
“The Act expressly states that a breach of the Code by itself does not mean that either of the statutory offences is established”.
37. Notice that in an apparent contradiction, Mr Dutton later goes on to say, at paragraph 40 :
“I regard the Board’s requirement of confirmation to be intra vires the Code and intra vires the 1997 Act”.
38. But on close scrutiny, that is saying something completely different. Here the Board is being advised it is entitled to ask for the information; that is not the same as giving advice that a failure to provide the confirmation is thereby unlawful. Mr Dutton does not say that the Board has power to punish anybody for failing to produce this evidence; on that, please mark it well, he is silent.
39. I suggest that the only plausible explanation for this is that Mr Dutton, as might be expected, was instructed to support the Board’s policy as best as he could. So, I submit, his advice is carefully directed to support the Board’s contentions. What is germane therefore to the Committee’s present task is not so much to ascertain what is there in the advice but what is missing.
40. For Mr Dutton was not asked the key question: “Can a registered person be found guilty of unacceptable professional conduct merely for failing to provide the Board with evidence of professional indemnity insurance?”, which was, of course, the only question that he need have been asked. You can see the questions that were put to him – they are set out in the Opinion – and he wasn’t asked that question.
41. I submit that the reason for this is obvious: Mr Dutton was tasked to do his best to undermine the objections that I had made to the board that it had been acting unlawfully.
42. A barrister can never willingly ill-advise, nor would I suggest that Mr Dutton ever would. But it is manifestly clear, and I submit, that had he been asked that question: “Can a registered person be found guilty of unacceptable professional conduct merely for failing to provide the Board with evidence of professional indemnity insurance?”, the only possible answer that he could have provided was a decisive “No”.
43. So the question was not put to him and the board was advised in the economical way that was sought.
Reasonable prospect of being correct
44. Now as I have already suggested it is not necessary for the Committee to decide at this stage (and I do not ask it) on the lawfulness of enforcing the provisions of Code Standard 8, nor whether the Board may demand compliance with the Code under threat of penalty, or that the Board has published only a précis of Mr Dutton’s opinion. All that is necessary for you to do, as the quorate Committee, is now to recognise that these observations of mine will bear examination. And if on examination you see, no matter how slight the justification, that they are not entirely without prospect of success, then I submit that for present circumstances, my application has justification.
Possibility of bias in the Committee
45. Having surmounted what may be called the “reasonable prospect” hurdle, “possibility of bias” comes next for consideration. But what is to be considered here is not necessarily actual bias, but an apprehension of the “real possibility of bias” to the well-informed but impartial observer. I am asking the Committee to look at no high threshold here. The words to consider – the definitive test – is “real possibility”, not fact.
46. Despite my being the first to engage in correspondence with the Board over this issue (along with my refusal to comply with the board’s demands) mine is not the first case to come before this committee, but the 14th . How can that be explained when the circumstances – a refusal to return Certificates of Compliance – are more or less identical in all the cases? It cannot I suggest escape questioning that the delay to my case, which I have complained about, has been deliberate, laid in the expectation of a spirited defence and designed to establish a succession of decided cases so that when my turn came around, I would have a series of Committee precedents to overcome. Although that is my unequivocal view of the landscape in which, regrettably, this case is found, I need not ask the Committee to accept it: it is not a relevant test of objectivity. But I do ask that it ignores it utterly and completely. Indeed, I would strongly urge the Committee not to stray anywhere near extraneous issues of this kind other than for the purposes of scene setting and having a clear understanding of the conscientious and principled pragmatism of my defence, and, I reluctantly suggest, the expediency of the board.
The relevant question
47. The relevant question for this committee, and indeed the only question that brings to bear on deciding this application is to consider the circumstances that I shall describe in the light of the Magill test, and to decide what this fair-minded and informed observer would make of any particular designation of members in any quorate meeting of this Committee, having considered the facts.
48. That, I suggest, is the place where next the Committee should and indeed, must go; and I would submit that it should take very little time to conclude, from the facts as I shall explain them, that it is clearly apparent that a real possibility of bias exists in the Committee if anyone who is named or is otherwise included in the two classes of member that I have described is designated to hear my case.
The remedy - exclusion of those with an interest
49. In my submission there is only one remedy for this. It is that nobody who is designated to determine this case, or indeed plays any part in it, should have had any involvement in the formulation, establishment, revision or promulgation of Code Standard 8.
50. I shall next explain the relevance of the two broad categorisations of members set down in my application.
51. I shall deal with both aspects of this categorisation – that is, both past and present board members.
52. Concerning past Board members, on 5th October 2005, Mrs Barbara Saunders was a designated member of the Committee that heard an application from Messrs RL― and JL―. Mrs Saunders had been a member of the board when the present Guidelines were introduced in 2001. She had been a board member involved in making the policy. That fact was put to her and, [417 - line 14] recognising that the case before her was unusual, and so as to ensure “that there should be no perception of bias”, she recused herself and stood down. What Mrs Saunders properly recognised, I suggest, must also be recognised by any other past member of the Board in any case where a question of involvement in relevant policy arises, for there is nothing to distinguish between Mrs Saunders’ circumstances and all other board members with an involvement in Code Standard 8 policy decisions. Mrs Saunders saw the danger that she might be seen to be judging the effects of her own policy, and natural justice demands that nobody should ever be judge in his or her own cause. And I submit that what was the right decision for Mrs Saunders must be equally applicable to all other previous board members, for they all have had this involvement from time to time. The canon of natural justice which the lawyers present will be familiar with is nemo judex in sua causa – which translates as “nobody should be the judge in his own cause”.
53. As to present Board members,  they are required to subscribe to the Board’s Policy on Matters to be discussed in Open and Closed Sessions of Board Meetings.
54. Now clause 8.1 of that policy states:
Consistent with the duties and principles of collective responsibility, individual Board members
-shall be bound by decisions of the Board or any committee of the Board
- shall not make any public comments which would call into question any decision either past or present.
55. Clause 8.2 of the Policy says:
This Policy is binding on all Board and committee members and members of advisory and other groups or bodies.
56. It follows, from that, that every Board member is constrained to set aside his or her discretion and objectivity over any question involving, as it does here, the lawfulness of a past Board decision. The effect of that is that every Board member is bound by the Board’s decisions and cannot publicly call those decisions into question. By this policy (and there is nothing pejorative in this), all Board members are, de facto, biased. I suggest there can be no alternative to this conclusion: it is inescapable.
Those who have been involved with the formulation, establishment, revision or promulgation of Code Standard 8
57. I next turn to the sweep-up clause in my application which includes any person that has been involved with the formulation, establishment, revision or promulgation of Code Standard 8. This will include those who have for instance served on a Committee, including the Investigations Committee, when Standard 8 matters have been dealt with. Essentially any person in this category is identically placed with an involved past Board member. The wisdom of Mrs Saunders’ response should therefore apply equally to every person in this category as the potential risk of bias is indistinguishable. This conclusion is also, I submit, inescapable.
58. Next I come to those members of the Professional Conduct Committee who have decided cases involving a reference to Code Standard 8. I have looked through all the published decisions and drawn from them the names of all those who have had this involvement and who remain on the committee.
59. So I have named those persons currently serving on the Professional Conduct Committee who have found Architects guilty of a charge framed under Code Standard 8. They are those members of the Committee who have made up a quorum for the purposes of Part III of the Act. They include the majority of the present panel, Ms Mogridge and Mr Hutchinson.
60. By naming people on the Professional Conduct Committee I am not naming them with any offensive intention. And as I shall explain, the reason for including them is not merely that they have reached decisions of guilt on previous cases where the charges were similar. It is much more than that.
61. It may possibly be argued that because the PCC is independent of the Board, and provided its members have not been involved with any policy decision of the Board, there can be no danger that its decisions will be perceived as being biased. If this happens, then I expect it will also be argued that there can be no prospect of bias in the proper exercise of the Committee’s judicial duties. But the influence that I am going to address is subtle, is powerful, and goes straight to the heart of the common-law right to a fair trial.
62. To demonstrate this I need to take you through the series of cases where architects have been found guilty of failing to return the Board’s certificate of compliance under Code Standard 8. The first in the series was the case of Mr A― W― which was decided on 4 February 2003. It was a pure Certification compliance case.
63.  Mr W― took no part in the case and it appears that the Board’s assertions were accepted by the Committee without question. Mr W― was found guilty of unacceptable professional conduct. The penalty appears arbitrary – a £1,000 fine and 12 months suspension, which was, incidentally, a double or mixed penalty that the Act does not provide for  .
64. In Mr W―’s case there is no record of there being any consideration of section 13(4)(a) of the Architects Act. The finding was as follows:
We find Mr W― guilty of the second charge, that is of failing to provide to the Board evidence demonstrating Compliance with Standard 8 of the Standards of Conduct and Practice when requested to do so by the Board.
65. Taking account of the provisions of section 13(4)(a) of the Act and the board’s own advice from Mr Dutton, I submit that that is a faulty decision, and can be nothing other than faulty. It is a decision that is exclusively based on a failure on Mr W―’s part to comply with a provision of the Code. There can have been no other evidence or we should doubtless have heard about it. So by the Act and by reference to the board’s own advice given by Leading Counsel, Mr W― has been treated unjustly because he has been found guilty merely of a breach of Code Standard 8.
The Chilton guidelines
66. As to the question of where the blame for that faulty decision must lie, we must look to the Professional Conduct Committee. Mr W― was not only unrepresented but he took no part in the proceedings. It has been said (and here I read from Chilton v Saga Holidays ) that where one party to disciplinary proceedings is represented but the other is not (and I paraphrase slightly),
“[it is] the duty of the [tribunal], so far as it can without losing its ability to act judicially, to make good any deficiencies in the advantages available to the unrepresented party.”
67. This guidance, which for the purposes of this application I shall refer to as the Chilton guidelines, is important; for any judicial tribunal’s function is
“to hold the scales as evenly as [it can] and to act fairly and judicially in the conduct of a hearing”.
68. In practice this means that where a hearing proceeds in the absence of one of the parties, the tribunal should consider the evidence and submissions before it in order to determine whether they are sufficient to establish the claim. A tribunal is not bound to accept the evidence of the party attending  and may find, even if the submissions and evidence are not countered, that the case falls short of proof .
69. These are all well established principles, and I shall be surprised if the Board’s solicitor takes issue with any of them.
70. Even if, therefore, the Board failed to raise s.13(4)(a) in its submissions, by the Chilton guidelines it was the duty of the Committee to do so. It must, I think, be a fair presumption that the Committee is intimately acquainted with the Architects Act. It should have applied the test of s.13(4)(a) squarely against the Board’s allegation. It cannot be excused for the possibility of being unaware of this provision, and it cannot be excused for glossing over the clear obstacle that it presents to a finding of guilt. For had it applied that test, the case in my submission would unquestionably have failed.
71. So, I submit, in the case against Mr W―, a bad precedent was set.
72.  The next case was against Mr G― Z―. Mr Z― was the first of six cases heard on identical charges on 15 March 2005. Mr Z― admitted the charges and the question of the lawfulness of standards was not considered. I need not trouble you with it.
73.  In the case against Mr J― S―, Mr S― was not present and was not represented. The Board’s solicitor argued the Dutton line [327 – line 21]:
“The Board does have power to monitor compliance”
but did not touch on any power to enforce it. The section 13(4)(a) test was not applied by the Committee. So Mr S― was found guilty of unacceptable professional conduct and his name was later erased from the register.
74. And so I say a second bad precedent was set.
75.  The case of Mr F― C― did not deal with the question of self-certification, because he admitted to unacceptable professional conduct. I need not trouble the Committee with it. But in passing, see the question from the chair  where the Committee is clearly taking an interest in the weight of the evidence. It is, I submit, only the more surprising therefore that the Committee has not taken the same precautions with the Board’s submissions – or the gaps in them.
76.  The case of Mr R― K― is curious. Mr K― was a 70-year old architect in retirement. His name was held on the Register for the purpose of ensuring that the case against him could be heard. No evidence appears to have been adduced demonstrating that he was earlier in practice without insurance, and yet that was the finding against him. There was no compliance certification and the solicitor argued the Dutton line [339 line 25]:
“The Board is entitled to require evidence of compliance”.
77. Mr K― was not present to challenge that assertion nor was the import of the s.13(4)(a) test on its decision considered by the Committee. Mr K― was found guilty of unacceptable professional conduct and his name was later erased from the register.
78. In Mr K―’s case, it appears that the architect was forced into a breach of the code by refusing to allow him to remove his name from the register. The effective s.13(4)(a) defence was not properly considered as it should have been.
79. And so a third bad precedent was set.
80.  The charge against Mr B― C―, which sprang from Code Standard 8, was admitted. I need not trouble you with it.
81.  The case against Mr C― G― was heard in his absence, but representations made in correspondence were taken into account. There had been no self-certification and the solicitor argued [360 line 18]: “The Board is entitled to require evidence of compliance” – notice the now familiar wording. But then he went on to say:
“... and section 13.4 states that failing to comply with the code is not of itself unacceptable professional conduct or serious professional incompetence but such failure shall be taken into consideration in any proceedings against a registered person.”
82. Now that must have put the Committee on the spot.  In the decision, the chairman referred to s.13(4)(a) for the first time in any decision. He said:
Mr G― has drawn our attention that a breach of the code is not itself unacceptable professional conduct and one has to look at every case on its merits. This we have done here. There is nothing before us, either from the Solicitor Complainant or from Mr G― to suggest that a failure – which Mr G― admits – to maintain adequate professional indemnity insurance – suggest any circumstances where that would not amount to unacceptable professional conduct.
83. It is not entirely clear from the transcript what is meant by this. It appears that the Committee made its decision not by assessing the proper effect of section 13(4)(a) on its decision, but instead made a presumption of guilt that Mr G― was burdened to discharge. By any legal perspective that, I submit, cannot be right. It is a travesty of natural justice.
84. So a fourth bad precedent was set and in my submission Mr Verdin had now been involved in leading the Committee to make three bad precedent decisions, having followed that set by Mr Churchouse in the case of Mr W―. The Committee manifestly failed in its duty on each occasion to apply the section 13(4)(a) test, an issue that I submit in each of these cases was of cardinal relevance to its decisions.
The Penalty hearing for Mr G―
85.  Next I come to a curiosity. In the decision on Mr G―’s penalty which took place on the 7th April, 3 weeks after the substantive decision was made, without prompting Mr Verdin launched into a defence of the Committee’s substantive decision, giving further elucidation of the Committee’s approach to the application of section 13(4)(a). It appears that he felt the need to bring some clarity to his earlier substantive decision, for when applying the penalty on 7 April 2006, he said – even though the business had nothing to do with the substantive issue:
 It has been said by Mr G― - and I should say Mr G―'s correspondence and the documents he sent to us and what he has said to us today have been very helpful - is that breach of a standard is not of itself misconduct. That is a position which is recognised by this Committee.
We need to perhaps define the position of a standard, a standard which has been set by the Board.
There are exceptions to each of the standards. There is the requirement for insurance, for example. The return which is made by practising architects does enable them to identify situations where insurance is not required by the Board. But standards in themselves are norms which are expected to be observed by reasonable architects: they are guidance; they are a form of Highway Code.
I think that the situation of the Highway Code is a very useful analogy. A breach of a standard is not of itself automatically misconduct, but of course we have to look at the standards and we would have to look at the reasons for the departure from any standard and departure from that norm. We would have to make a judicial decision.
I should say that in this case we cannot find that there is any justification for departure from the norm. That was found in the original hearing. We have nothing before us to suggest that Mr G― had justification to practise without insurance, and we do not consider that he has produced any further compelling reasons today, although, as I say, this is a matter where we are considering penalty.
86. From a consideration of this reasoning I think that the following may be concluded. First, the Committee has not properly applied the section 13(4)(a) test. Secondly, Mr Verdin feels a duty to follow the W― precedent where the test was not even mentioned. Thirdly, there is no reason given to justify a finding of unacceptable professional conduct apart from the curious analogy between the board’s Standards and the Highway Code. It appears that any breach of the code results in a presumption of guilt, for such a breach is a departure from what Mr Verdin describes in novel terms as being “the norm” – that is, unless there are good reasons to convince the committee otherwise. An apparent, but in my submission, an entirely inappropriate and inadequate explanation for the injustice of the earlier decision.
Too late for objectivity
87. But by then it was of course too late. The Committee had passed its finding of guilt on Mr Gardiner the previous month and was functus . References to the Highway Code even if raised by the Board’s solicitor are, I submit, not a useful tool in statutory interpretation, particularly when the words of the relevant Act are so simple and straightforward that no special legal interpretation is needed.
88. Going back to the substantive hearing, what, one may ask, could the Committee have done? It had just made three ill-considered and faulty decisions, and Mr G―’s challenge (the last incidentally of the six to be heard) was on the very point that the Committee had failed to consider in the five preceding cases where the architects had made no representations and had been absent from the proceedings. What could Mr Verdin do when he was challenged four-square on the very issue that should have been at the front of his mind in the decisions he had just made? He should, of course, have passed the case on to someone else.
89. But he did not. Instead of providing cogent reasoning he laid a trail of bizarre comparisons and applied an unnatural test of guilty unless proven innocent.
90. So, a fifth bad precedent.
91. That concluded the batch of six heard in the spring of 2005. Towards the end of that year, the cases of Mr J― L― and Mr R― L― reached the Committee. For the first time the lawfulness of the Board’s policies in respect of Code Standard 8 was challenged, and those challenges were addressed in the decisions.
92. Having dismissed the charge of having inadequate insurance for want of evidence, a finding of guilt was made against Mr JL― for failing to provide evidence of insurance . It is instructive to take this part of the decision at length. In the Committee’s decision Mr Verdin said:
[394 – half way down] A breach or breaches of the Standards do not of themselves constitute an offence. The Standards are yardsticks or guidance which assist in forming a judgment as to serious professional incompetence or unacceptable professional conduct in any particular case. Those Standards are used as such by this Committee. It is, however, fair to say that some Standards are more absolute than others in the way in which they are framed and this may well be the case with Standard 8.
Nevertheless, it should be made clear that the reference in the Architect Act 1997 at Section 13(4) 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 ...”
That reference emphasises the guidance aspect of the Code. What those words do not mean is that proceedings alleging unacceptable professional conduct can only - and I stress the word “only” - be brought if there is a complaint by a third party.
If the Board consider that conduct of an architect constitutes unacceptable professional conduct, it can of its own volition bring a case for this Committee to decide.
Mr JL― argues that the phrase “not be taken of itself” means that there must be - and I quote again from Mr JL―’s submission - “some other event or circumstance that occurs as a direct consequence of a lack of compliance with the Code by the architect”. He says the most relevant consequence that should trigger disciplinary proceedings is loss or damage to someone or something by virtue of an architect's act or omission.
One can perhaps understand this view and it may be a commonly held view within the profession, but it is a misconstruction of the words of the Act. The correct construction of those words is that the Standards are effective to be taken into account along with any other circumstances in the particular case. There does not have to be loss or expense for there to be unacceptable professional conduct. But it should be obvious that one of the consequences of the failure to complete the compliance certificate in this case has resulted in considerable expense to ARB in dealing with that omission and, therefore, to all the architects who fund ARB.
93. And a little later he said :
Our remit is a narrow one. It is not for us to comment on the merits of legislation or rules and standards made under it. We only have to be satisfied that the legislation and the rules and standards are properly made; and we have made it clear in earlier decisions on preliminary issues in this case that they have been properly made.
94. On the face of it: plausible reasoning – but off the point; and where Mr Verdin says:
“... a judgment has to be made by this Committee as to whether, in any particular circumstances, any particular conduct is unacceptable or not”
it is apparent that once again Mr Verdin is reviewing his position vis-à-vis the application of the Code without reference to the relevance of the unequivocal section 13(4)(a) proviso.
95. When the Committee has had time to reflect on Mr Verdin’s words exactly, perhaps after reading the transcript of this hearing (I do not expect to be given a decision on this application today), I suggest it cannot help but be noticed that all he was saying was that there is nothing in the Act that prevents the Board (by which I think he means the Investigations Committee) from bringing a charge; he does not justify the conversion of such a charge into a penalty. I submit that if he were to try he could not; and I urge the Committee to take notice of the scattering of extraneous reasons that Mr Verdin mentioned which are no more than distractions. The Committee should, I submit, recognise that “the considerable expense to ARB” is entirely without bearing on the issue of conduct.
96. Elsewhere, for instance where he says, straightforwardly, that:
“a breach or breaches of the Standards do not of themselves constitute an offence”,
he is right. This is precisely what Mr Dutton said in his advice, carefully stating the position on the inability of the PCC to reach a finding on a pure breach of the Code. Mr Verdin, it will be noted, has not said that the Professional Conduct Committee has the power to convict on the basis of a failure to comply with the provisions of the code. Nor has he said that such an infraction of the Code may be taken of itself to constitute unacceptable professional conduct. In fact, correctly, he has said the opposite.
No plausible justification in the reasoning
97. Clearly now having done his homework, I suggest Mr Verdin found himself in some considerable difficulty. It rather looks as though he has done some serious thinking – and perhaps some research into Mr Dutton’s opinion – and he has done his best to underpin his past decisions and the Board’s policy. But on close analysis his reasoning provides no plausible justification whatsoever for his decision, nor for any of the earlier decisions to which I have referred.
98. It is plainly evident, and I submit: Mr Verdin’ reasoning and the Committee’s decision are entirely without nexus.
99. So, a sixth bad precedent was set.
100.  Next we turn to Mr RL―. The decision was made on the same charges but was decided only on the fact of Mr RL―’s principled refusal to return the Certificate of Compliance. The Committee was silent on reasoning for the decision, referring to the decision just made in Mr JL―’s case. But then Mr Verdin launched into an extraordinary tirade against Mr RL―, bringing into the decision facts which were brought to the Committee neither by the Board’s solicitor nor by Mr RL―, but which can only have been the untried and unexamined evidence of the Committee itself.
101. Mr Verdin’s intention was, I suggest, clearly to excoriate Mr RL― to make a public example; but I submit it was a deeply flawed intention. The only evidence that went to Mr RL―’s character during the entire hearing came from a vice-president of the Association of Consultant Architects, Mr John Griffiths. His evidence was that Mr RL― was held in his profession in high esteem and probity, a view that was shared by Mr Griffiths himself.
102. What in fact Mr Verdin succeeded in doing while publicly vilifying Mr RL― was to reveal the policy which he, while chairing all the cases that I have referred to, was giving every appearance of trying to promote. He said:
 We obtain a picture of a course of action of attempting to wreck the rightful actions of the Board and, in the circumstances, we have decided that you will be fined the sum of £1,000 to be paid within 30 days.
103. Here then is the picture. This is not a fairly conceived penalty: it is, I submit, self-evidently vindictive. This is not a dispassionate penalty: it is Mr Verdin saying that the PCC can be relied upon to defend the Board. It is not a consideration of Mr RL―’s professional conduct but instead a political response to a principled and objective criticism of the unlawful conduct of the board. The penalty exacted cannot be related to the charge, to justice or to a fair trial. It was an attack on Mr RL― merely for having the audacity and courage to act in a principled fashion.
The existence of clear extraneous reasons for a perverse decision
104. I submit that the only plausible explanation for this tirade was that Mr Verdin was reduced to it to save himself from the humiliation of admitting his own error of judgment in the hearings earlier in the year – and in fact the whole train of the Committee’s dismissive treatment of absent and unrepresented defendants. I submit that it would be easier to argue that the sun shines down on London at midnight than to discount the apprehension of a real possibility of bias in this decision, as viewed by that objective and well-informed observer.
105. So, a seventh bad precedent was set.
Ms Mogridge’s position
106. Now Ms Mogridge heard the cases against Messrs JL― and RL―. She is a solicitor, and it must therefore be presumed that she has understood the true effect of section 13(4)(a), and will have seen through the omissions in what I suggest may fairly be referred to as “the Dutton fudge”.
107. Having heard what I have said today, does she remain convinced of the correctness of her committee’s decisions? Has she, I wonder, ever tested the correctness of her contributions to the Committee’s decisions in the way I have suggested? Has she looked at and weighed the precedent that Mr Verdin called to his assistance? Does she stand by the assertion, argued by nobody but advanced by the Committee when she sat, that some Code Standards are more absolute than others, or that inconveniencing the Board (once again a point that the Board did not advance itself) was a material factor in a finding of guilt? And I respectfully ask: if she has difficulty answering even one of those questions, should she be here today?
108.  Next came a case against Mr P― E―, which was heard last October, on the 18th.
109. The decision was taken by Ms Deacon, Mr Hutchinson and Ms Read, who I think were all new to this kind of case. Mr E― did not attend the hearing, and he was not represented. We read in the decision that the Committee
“takes a very serious view that Mr E― has not provided evidence of appropriate insurance cover ...”
which by now has a ring of familiarity about it.
110. Indeed, this decision is very similar to the first case in the series – that of Mr W― – for the Committee appears once again to have failed to consider any, let alone the proper application of the section 13(4)(a) test to Mr E―’s case. I suggest it should have done, for Mr E― was neither present nor represented. Had the Committee applied the test, it would have recognised that Mr E― was no more than in pure breach of the Code and that accordingly, no finding of guilt could be found; for such a breach cannot, as I have several times quoted:
“of itself, be taken to constitute unacceptable professional conduct or serious professional conduct on his part”.
111. From a reading of the decision there was no evidence of wrongdoing, no failure to a client, no ethical shortcoming – just a failure to answer to a duty which the Board had purported to create.
112. So an eighth bad precedent was set.
Mr Hutchinson’s position
113. Here, I would ask, having heard this review of the case against Mr E―, is Mr Hutchinson absolutely comfortable with the decision his committee made? Did he inquire, as he should have done for the benefit of the absent and unrepresented architect, into the weight of the Board solicitor’s case? Did he consider for a moment that Mr E―, had he been present or represented, could rightly have relied upon section 13(4)(a) of the Act to demonstrate uncontrovertibly that there was no legal justification for the case at all? Did he make good any deficiency in the advantages that would have been available to Mr Ellah had he been represented and present? Did he attempt to hold the scales of justice evenly? Did he examine whether he was acting fairly and judicially throughout the conduct of the hearing? And again I respectfully ask: if he finds the least doubt in any answer to those questions, should he be here today?
114. Next the case of Mrs Y― F― heard and decided on 24 January 2007 [431A]. Mrs F― attended to admit that she had failed to reply to correspondence and, it must be presumed, failed to submit evidence of her insurance. Mrs F― chose to be contrite but was nevertheless subjected to a finding of unacceptable professional conduct. She came without representation yet there is nothing in the decision to indicate that the Board solicitor or any member of the committee reminded her of those provisions of section 13 that could have provided her with a statutory defence – and clearly Mrs F― was unaware of it – so there was no contest. The decision was yet another where the PCC appears to have satisfied itself of the guilt of the registered person under section 15(1)(a) without any evidence of professional conduct, merely a failure to respond to the board’s unenforceable demands.
115. And so a ninth bad precent was set.
116. Last month we had the case of Mr N― A―, decided on 21 February 2007 [431B]. Owing to an unrelated professional engagement I am conflicted out of making a comment on that case, although I will say that I am astonished that Mrs Saunders was prepared to sit on this insurance case when she had earlier recused herself in the JL― and RL― cases on grounds that must, it appears, be equally applicable here. I can see no plausible justification for such inconsistency.
117. Finally, the case of Mrs P― P―, decided on 28 February 2007 [431D]. Mrs P― attended the hearing with a friend from her practice; she was not represented. Mrs P― had insurance; her only alleged misdemeanour was to have failed to provide the board with evidence of it: yet another, it appears, in the series of what can be referred to as “cases concerning a mere breach of the code”. We have the familiar comment from Mr Verdin on his view of the seriousness of the breach and the usual failure of the Committee to consider the section 13(4)(a) defence, even though Mrs P― was unrepresented. But Mr Verdin, regrettably in what I suggest can only be concluded is another departure from natural justice, said in passing that if there had been no evidence of insurance, the Committee was able
“to draw an inference ... that she was uninsured”.
118. Here Mr Verdin is reverting to the presumption of guilt that he brought to bear against Mr G―. I regret to say that Mr Verdin appears now to have lost all sense of his judicial responsibilities, being apparently prepared to adopt the board’s coercive threats by reaching conclusions adverse to an accused person without a scrap of evidence to prove it.
119. Moreover, he continues to take extraneous issues into his consideration, clearly allowing what appears yet again to be the Committee’s own argument that the board’s prosecution costs should be taken into account when setting the penalty.
120. Once again the Committee has reached a decision without giving any indication of applying the Chilton guidelines, depriving Mrs P― of the section 13(4)(a) defence, and thereby setting a tenth bad precedent.
The question for today
121. Now as I have said: today, for the purposes of this application, the Committee is not asked to make a declaration on the effect of the section 13(4)(a) test – that will come later, notwithstanding that an Act of Parliament should need no such confirmation. Neither am I asking the Committee to open up and review past decisions – it has no power to do that in any event.
122. In fact I am not asking it to exercise any judicial function as a Committee. Nor am I suggesting that it criticises its members Mr Brookhouse, Mr Cuthbertson, Ms Deacon, Mr Hutchinson, Ms Mogridge, Mr Oldham, Ms Read, Mrs Saunders and Mr Verdin – all of whom are currently serving and who have contributed to this train of decisions.
123. All I am asking – all I am asking – is for the members of the Committee both present and absent to consider whether anything – that is anything at all – gives the slightest ground for doubting their ability to ignore extraneous considerations, prejudices and predilections on consideration of the case against me; and whether each and every member of the Committee on hearing such a case as mine can be absolutely trusted to bring an objective judgment to it and, moreover, to give every appearance of doing so.
124. And there’s the rub. In making their examination, the members of the Committee, present or not, must of course adopt the position of the fair-minded and informed person and question whether that person would believe there to be at least a significant chance that I am not wrong in my assertions. That is the question. They must carefully consider how a judge of the High Court would view their continuance in this business in an appeal under section 22 of the Act, if it were to come to that.
125. The Committee is, I suggest, bound to recognise that each of the members that I have named will have to overcome the hurdle of considering the possibility that their past decisions have been incorrect. This is very far removed from the instance of a magistrate deciding similar cases on the facts. A magistrate cannot examine the law, he must follow it. But the PCC cannot impose a penalty based upon on an unlawful premise. And this will be my contention in the substantive hearing: that in each of the cases I have cited, the PCC has failed to apply the law properly. In each case, the conduct complained of should not have engaged the disciplinary attention of the PCC.
126. That is for the substantive hearing. For today, the Committee is asked only to consider the possibility that I may be correct and the possible consequences of that. The thresholds I am asking the Committee to look at are these:
a. First – that the PCC cases I have cited may conceivably have been decided incorrectly, and
b. Secondly – that this unhappy history may prevent involved PCC members from looking at my case objectively – or at least may give a disinterested observer sufficient reason to apprehend the possibility that this may be so.
127. These are thresholds that I submit are very far from being high. For I am here only talking about possibilities; and where any doubt might exist, it is clear that the Magill rule should apply. So I submit that if you find that that detached person we have heard about would have any doubt about it at all, then that is good reason for recusal, which cannot then be avoided. If by any objective ascertainment you have those doubts – no matter how slight – then I would urge you to accept that the question in the mind of that fair-minded and informed person would be turning inexorably to the conclusion that there exists the real possibility of bias in my case.
128. To assist with that decision,  once again I refer to the leading case of Locabail (UK) Ltd v Bayfield Properties Ltd and related appeals  2 WLR 870 where the rules for disqualification of judges and other tribunals was authoritatively described. At paragraph 7 their Lordships said:
 The basic rule is not in doubt. Nor is the rationale of the rule: that if a judge has a personal interest in the outcome of an issue which he is to resolve, he is improperly acting as a judge in his own cause; and that such a proceeding would, without more, undermine public confidence in the integrity of the administration of justice.
129. And at paragraph 25, examples are given of when the possibility of bias may be considered to arise. Their Lordships said:
 ... if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind...; [and here comes the crucial observation on which I now place reliance] or if, for any other reason, there were real grounds for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear of the issues before him.
130. “Real grounds for doubting the ability of the judge (in this case the Committee) to ignore extraneous considerations”. That is the test of justice. “Doubt” – a small word, but devastating to the entitlement to a fair and impartial hearing, and brought firmly into the frame by the necessity to overcome the influence of the past, and in my view, the wholly erroneous decisions of the PCC.
131. In this respect, please turn back in this authority to , paragraphs 2 and 3,
In determination of their rights and liabilities, civil or criminal, everyone is entitled to a fair hearing by an impartial tribunal. That right, guaranteed by the European Convention on Human Rights, is properly described as fundamental. The reason is obvious. All legal arbiters are bound to apply the law as they understand it to the facts of individual cases as they find them. They must do so without fear or favour, affection or ill-will, that is, without partiality or prejudice. Justice is portrayed as blind not because she ignores the facts and circumstances of individual cases but because she shuts her eyes to all considerations extraneous to the particular case.
132. This next paragraph you have heard before; but in this context it bears repeating:
Any judge (for convenience, we shall in this judgment use the term “judge” to embrace every judicial decision-maker, whether judge, lay justice or juror) who allows any judicial decision to be influenced by partiality or prejudice deprives the litigant of the important right to which we have referred and violates one of the most fundamental principles underlying the administration of justice.
133. I contend and submit that there are real grounds for considering that members of the committee who have been involved with cases where they have endorsed the policy of the board in enforcing Code Standard 8 may not provide me with a fair means for the resolution of the matters now falling to be determined, and that in consequence those members present or absent should take due notice of the judicial guidance that I have brought to their attention.
134. Although I have not quite finished we have covered a lot of ground and it will be convenient at this point to summarise the propositions I have made so far:
a. First: Those I have named have an interest in the outcome of this case, because if they were to find in my favour they would have to admit to past errors of judgment in failing properly to apply the provisions of the Act. They might find that difficult; and that quite properly raises doubts;
b. Secondly: Every preceding decision has been tainted by the failure of the Committee to follow the Chilton guidelines in circumstances where the accused has been neither present nor represented; or else present but not represented. That too may cause embarrassment to members of the committee with past involvement in Code Standard 8 cases, and
c. Thirdly: The extraordinary nature of the decision in the case of Mr RL―, and the history of mistakenly weighing extraneous material in that and other decisions, casts grave doubt on the ability of those involved to approach my case, with all its similarities, with the necessary objectivity.
135. For these reasons I submit that none of those whom I have mentioned, either by name or by class, should form a quorum of the Committee. If designated to sit they should recuse themselves; and others not so affected should, I suggest, refuse to sit with them on this case.
The right to natural justice
136. It has been suggested elsewhere that because every person who is penalised under section 15 of the Act has the right of appeal to the High Court, any lack of natural justice found in this room is of no account because it is cured by an application and trial under section. Now it is of course no part of the Professional Conduct Committee’s function to review or rule upon decisions of the Board, but it is nevertheless an essential duty of the PCC to ensure that nobody is unfairly penalised for refusing to consent to an unenforceable demand. It is not the job of the PCC to adopt the Board’s policies uncritically, but to bring justice to an accused person under the law. In this regard, it is necessary to return to the Board’s Policy on Matters to be discussed in Open and Closed Sessions of Board Meetings [175 at 177].
137. It will be seen that paragraph 8.2 of that policy appears to bind the Professional Conduct Committee to the policy of the board. It says:
This policy is binding on all Board and committee members.
138. Now it is clear, as I have pointed out, that board members are bound unequivocally by this policy and must therefore, de facto, be biased and incapable of deciding any decision involving an allegation of an infraction of board policy. But it is not at all clear whether by this clause 8.2 members of the Professional Conduct Committee who are not board members are also swept into the sway of the policy.
139. In David Preiss v The General Dental Council [323X] it was established (at paragraph 9) that:
“a decision of a professional tribunal affecting the right to practise the profession is a determination of civil rights and obligations”
140. In consequence, Article 6(1) of the European Convention for the Protection of Human Rights (as Scheduled to the Human Rights Act) applies [162A]. And as may be seen by reading to the bottom of that paragraph from Preiss [323Y], their Lordships found that this was no different to the position under common law rules. It follows that I am entitled to natural justice from the PCC, and I submit that I am therefore entitled to a fair and proper consideration of this application.
141. This means that the PCC cannot approach my case at any stage on the basis of the Board’s procedures as it finds them. It must, in exercise of its judicial functions, be detached and entirely objective.
Two further illustrations
142. I have just two further points to make in illustration. They view the question the Committee is asked to address from a slightly different viewpoint which may assist the Committee if there is any difficulty with the case I have made.
The nature of unacceptable professional conduct
143. Prior to November 2001 there was no conduct relevant to this Committee, professional or otherwise, that by any stretch of the imagination could be construed as being connected with an act of obedience to a demand to supply information to the Board about PII, or any other aspect of practice for that matter. This charge brought against me springs from a question over conduct which the Board has brought into being. It is new and concerns only the relationship of the registrant and the statutory registration body – not, note, the architect’s professional body.
144. There must therefore be at least a serious question (apart from the section 13(4)(a) proviso) whether the conduct the Committee must eventually evaluate is within the description of professional conduct at all; and depending on that, whether or not the evidence of professional indemnity insurance can be legally demanded of a registrant.
145. When that time comes I shall submit that it is not. Professional conduct concerns my relationship with my clients and others affected by my services – certainly that is what professional conduct has to do with principally. Therefore, if obedience to a demand of the board was indeed lawfully required of me I would expect there to be some express statutory penalty as a consequence of a failure in that particular conduct – perhaps even a resort to a statutory device expressly stating that failure to provide information to the Board concerning compliance with a standard “shall be treated as unacceptable conduct for the purposes of this part”. In that event section 13(4)(a) would of course have to have been made subject to that provision. But the Act contains no such provision – and I hope that I have adequately shown that what is not permitted of the board by the Act is, by law, prohibited.
146. I submit that this illustration provides an alternative means for the committee to question whether those categorised and named in my application may find themselves unable to consider my case objectively – or at least give a disinterested observer reason to apprehend the possibility that this may be so.
Unacceptable professional conduct – recognition or invention?
147. The other perspective that I believe will bear the Committee’s scrutiny is that when the PCC meets as it does today, its quorum consists of an architect, a layman and a lawyer. Just as an elephant is easy to recognise but difficult to describe, this quorum is well placed to recognise unacceptable professional conduct when it sees it. This is the logic of the Act and surely the exercise is one of recognition and not invention?
148. Mr Verdin, in his decision in the JL― case, said:
“Some standards are more absolute than others”
and in one sense I can agree with him. Code Standard 1 may be taken as an example and the Committee is able, I have no doubt, to recognise a lack of integrity when it finds it. But a lack of integrity is not unprofessional conduct because it is found to be in breach of the code – it is such because the conduct found lacks integrity. The fact that it is in breach of the code (actually a coincidence) is something which must then, by section 13(4)(b), be taken into account in the proceedings.
149. The Code Standards as they were originally conceived could similarly be ascertained by weighing an architect’s behaviour objectively. Apart from the necessity to act at all times with integrity, those standards included:
a. Meeting commitments with adequate resources (2)
b. Promoting services in a truthful and responsible manner (3)
c. Acting faithfully and conscientiously in practice (4)
d. Paying due regard to the interests of building users and others (5)
e. Maintaining service and competence (6)
f. Preserving the security of entrusted money (7)
g. Managing personal finances prudently (9) and
h. Dealing with client’s complaints promptly and appropriately (12).
150. The task of weighing evidence is not particular to the professional conduct as described by the Architects Act. In Roylance v the General Medical Council (Medical Act 1983) the Privy Council stated [323AI]:
... [The] Professional Conduct Committee [that is, of the General Medical Council] are well placed in the light of their own experience, whether lay or professional, to decide where precisely the line falls to be drawn in the circumstances of particular cases and their skill and knowledge requires to be respected.
151. The conduct which Code Standard 8 demands of registrants – providing evidence to the board of compliance – is different. In the first place it is conduct which is new and which cannot therefore fall within the ordinary experience referred to in the Roylance case. It is an invention of the board and it is highly specific. And I ask:
152. How on earth can three people from their knowledge of the world, the law and (via the architect), architectural professional practice recognise this as either acceptable professional conduct or unacceptable professional conduct? They cannot of their own knowledge but yet they have to discharge their duty and make a finding of guilty or not guilty. The fact that the code has not been complied with can be of no assistance to them because that of itself does not constitute unacceptable professional conduct. So they must make their finding on the basis of evidence. And where is that evidence?
153. If it is argued as it has been that over 90% of architects obey the board, that is no evidence of acceptable professional conduct – and it is certainly no pointer to unacceptable professional conduct. It is merely evidence that architects respond to the threat of the board instituting professional conduct proceedings.
154. And if it is argued that a refusal to comply burdens the board with unnecessary expense, that is no evidence of unacceptable professional conduct by the architect – and particularly so on the instance of a reasoned and principled objection.
155. So has the prosecution produced any evidence? Any at all? No, it has not.
156. The logical (and I submit inescapable) conclusion to these illustrations is that if the Committee was in due course to find me guilty of unacceptable professional conduct, it will have to do so without the external objective evidence of such conduct that is the prerequisite to a conviction. Evidence of conduct provides the only route; and if the Committee attempt that route without it, then it will be acting not as a body that recognises unacceptable professional conduct or finds it on the basis of evidence, but one that invents and declares it. In other words it will be acting as the board’s compliant enforcer rather than in the discerning manner required of a committee with judicial responsibilities.
157. Now I recognise that these are strong words. Today, the Committee need not respond to them directly. But I submit that it must also question whether those categorised and named in my application may, in the light of this illustration, find themselves unable to consider my case objectively – or at least give a disinterested observer reason to believe the possibility that this may be so. Would that person not see a real possibility that the earlier PCC decisions that I have recited were reached because the PCC felt a greater duty to promulgate the board’s policy than make a close examination of the statutory protection afforded to the accused architects? And in those circumstances would not that objective person conclude that there was a real possibility that in consequence the committee might be biased?
158. Now supposing, after careful consideration of this application you find are not with me on the effectiveness of the section 13(4)(a) proviso point and also you are not with me on the illustrations I have just rehearsed; and also perhaps that you see my defiance of what the Board has demanded of me falling within the realm of professional conduct, albeit in a novel form. If this is so – but I trust it is not and I submit there can be no justification for it – a careful examination must be made of my conduct at the time of any purported offence. I mention this because on the opening day of this applications hearing last year, directions were given by the committee which I believe by any reasonable ascertainment show that the board’s solicitor was given a great deal more leniency than me, which some may infer indicates a certain preconception that the committee may then have had as to my motive for bringing my applications.
159. And I suggest therefore that before looking at external circumstances you should look at the “internal circumstances” – my intentions. On this I trust you will accept that my disagreement with the Board has been logical and genuine and that I have not been “jumping on a bandwagon” as Mr Verdin accused – and found – of Mr RL―’s conduct. Far from it, as can clearly be discerned from reading Mr RL―’s representations on the AARUK website , Mr RL― advanced his own particular line of principled reasoning in defence of the charge made against him. But he was handicapped, because he did not have access, as I do, to Mr Dutton’s opinion. The board – and this I believe is properly scandalous – did; and while knowing the limited extent of that advice, has continued to bring prosecutions under the guise of Code Standard 8. There has been no bandwagon, just a number of determined and right-minded individuals, including Mr JL― and Mr RL―, properly indignant at the board’s unlawful adoption of the so-called “wider remit”. If the committee wishes to be convinced that I have always acted in the sincere belief that the Board was in error, then I suggest it reads my address to the Board on the matter of Standard 8 in 2003 .
160. I am a professional person which means that I remain attached to my professional ethics. I hope I can say, without wishing to be immodest, that I have stuck fast to that ethical code throughout the entire conduct of this matter, and indeed throughout my whole professional career.
161. But if you like, you may also say I have acted with the motivation of a freeborn Englishman jealous of his liberty. I have not, and am not prepared to yield the least portion of it – in this instance the liberty to withhold information of my private affairs from a statutory body – because I do not believe that Parliament has taken my liberty away by enacting the Architects Act. This is of course the point of law mentioned in the factual circumstances above and on which I shall in due course rely.
162. It is a fact (which the board’s executive officers now present will be able to confirm) that the RIBA has on legal advice protested that the ARB has wrongly exercised its powers under Part III of the Act. It has made this known to its members and publicly to the Board. From this alone I suggest (and the Committee may also wish to bear in mind the silence of the advice given to the board), it should be accepted that the legal foundation of my objection is not capricious or fanciful.
163. For it has to be borne in mind that whatever the public interest pleaded by the Board, there is also a public interest in statutory administrative bodies keeping within the powers given to them by parliament – which is the very cause behind my case if not actually the issue in it.
164. I trust that the committee will therefore accept that the application that I made on 5 December [Transcript page 40] and this application is no “general speech” and their purpose is not to offload grievances.
165. Now in a very real sense the decision you make in this case, if it is to uphold my application, will pave the way to a judicial examination by the committee of whether it can act within its powers in securing the prosecution that the board is seeking. And there can be no doubt that the substantive decision, if in due time it properly goes in my favour, will affect the position of many of the individual registrants who have been subject to earlier disciplinary provisions under section 15.
166. Moreover, if I am eventually successful and I receive the exoneration that I shall request, the Board’s fabricated scheme of compulsion will collapse. For a compulsion achieved only by a misapplication of sections 13 and 14 of the act and the manipulation of those on the register will not survive a properly resolved decision. Furthermore it is a compulsion which was expressly rejected by a spokesman for the government of the day when the legislation, as the Architects Bill, was progressing through Parliament. From which it can be reasonably deduced that the drafting of the Act is such that the compulsion can only be achieved by a misapplication of its provisions. It is therefore essential, and of wide public interest, that my case is decided in a manner that is beyond criticism.
167. The business that I bring today, although less weighty, is the key to this. My application merely entails bringing the Committee to a decision as to whether my contentions raise a doubt – no matter how slight the justification – over the objectivity of the persons and classes of persons that I have listed in this application to hear my case impartially. If that doubt exists, and I stress that it matters nothing how slight that doubt may be, that doubt should – I submit must – under the rules of natural justice, be fatal to any objection the board may have to my application.
168. So this is all that is requested: if there is the least chance of the PCC giving an appearance of bias in all the circumstances that I have described, then I submit that my application must succeed.
169. My respectful submission to the Committee is that if any of its members either present or absent find themselves within any category that I have described, they should naturally recuse themselves if they are designated to hear the charge against me under the PCC Rules, Rule 5. And I request that the titular chairman of the Committee should designate nobody in the categorisations that I have listed, or that I have otherwise named, to hear my case. I now therefore make application in the form provided.
170. I shall be grateful to have the Committee’s decision on this and my earlier application in writing, and with reasons given.