Ian Salisbury architecture and dispute resolution St Thomas’ House 6 Becket Street Oxford OX1 1PP tel : 01865 250777 fax : 01865 250999 [email protected] DX 145844 Oxford 6 9 May 2009 The Architects Registration Board, 8 Weymouth Street London W1W 5BU Dear Board Members, Consultation 2009/01 – Amendments to the Board’s Criteria at Part 1, Part 2 and Part 3 You have invited comment on all three parts of your Criteria which are described as setting the learning outcomes that must be achieved by those successfully gaining the qualifications in architecture that ARB prescribe at Part 1, Part 2 and Part 3 level. Such a consultation is valueless if the premise on which the consultation is based is faulty, and my purpose in writing to you is 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 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. The Act The relevant part of the Act for the purpose of this consultation is section 4(1): A person who has applied to the Registrar in the prescribed manner for registration in pursuance of this section is entitled to be registered in Part 1 of the Register if he holds such qualifications and has gained such practical experience as may be prescribed... and the Board’s prescribing duties are permitted by section 6(3): The Board may prescribe the information and evidence to be provided... So it is that the Board has a power no more than to prescribe the qualifications and practical experience necessary for and as a precondition to registration. There is little guidance in the Act over the interpretation of the word prescribe, providing as it does only the following for interpretation: ‘prescribed’ means prescribed by rules made by the Board and ‘prescribe’ means prescribe by rules. Ian Salisbury Limited Registered in England It is therefore useful to consider the background to the Act to discern the intention Company no 4117085 Ian Salisbury 9 May 2009 Page 2 of 12 given to it by parliament. Background When enacted the Architects Act 1997 was an Act that consolidated the legislation formerly contained in the Architects Act 1931, the Architects Registration Act 1938, sections 118 to 125 of and Schedule 2 to the Housing Grants, Construction and Regeneration Act 1996, the Architects Qualifications (EEC Recognition) Order 1987 (S.I. 1987/1824) and the Architects Qualifications (EC Recognition) Order 1988 (S.I. 1988/2241). All of these were later repealed. The most recent substantive parliamentary debate on the provisions of the Act took place in respect of the Housing Grants, Construction and Regeneration Bill in 1996, when the replacement of the Architects Registration Council of the United Kingdom by the present Architects Registration Board was proposed. In preparation for the parliamentary debate, the Government entered into public consultation. The proposals stemmed from a request, made by ARCUK to the Government in 1992, that the Architects Registration Acts 1931-69 be reviewed. Mr John Warne carried out that review after wide consultation, and his review was published in 1993. The Warne Report concluded that the main weaknesses of ARCUK included excessively prescriptive and inflexible legislation, and an imprecision in the definition of the duties and responsibilities of the Council. The Government’s proposals aimed to overcome these perceived weaknesses in a way that was generally acceptable to the public and the profession alike. As was stated in the public consultation paper issued by the Department of the Environment on 19 July 1994:– The main objective of the reforms is to create a small, focussed and effective registration body which represents the interests of both the profession and the general public. Its purpose would be to: set criteria for admission to the register; prevent misuse of the title “architect”; discipline unprofessional conduct, and set fee levels. The Bill was introduced into the House of Lords by Earl Ferrers who said at the outset of the debate on 20 February 1996, that – Our intention is that these changes should make the registration council a more representative and, dare I say it, a more efficient body which will work better for the benefit of both architects and their clients. The debate ran over several days and amendments were proposed. Earl Ferrers fell ill and his position as the government spokesman was promptly taken up by Lord Lucas. Lord Lucas said (on 1 April 1996):– The aim of the amendments is to ensure that the new Architects Registration Board does not spawn several new large and expensive committees. We are certainly sympathetic to that aim. We have established a new professional conduct committee but, having abolished the Board of Architectural Education and the Admissions Committee, the last thing we would wish to see is large new committees rising from the ashes, as it were, to take their place. I accept that such committees may be bureaucratic and expensive to run, and one of our aims in reducing the size of the Architects’ Council of the UK was to reduce Ian Salisbury 9 May 2009 Page 3 of 12 registration costs. The Bill then passed to the House of Commons where it was introduced by the Minister for Construction, Planning and Energy Efficiency, who said on 7 May 1996:– 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. Before returning to the Lords for its third reading, on 5 June 1996 a private member Mr Elfyn Llewyd secured parliamentary time to debate compulsory indemnity insurance, provision for which he called for urgently. In reply, the Parliamentary Under-Secretary of State for the Environment referred to the Bill, 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 to any of the criteria to cover financial or insurance matters. We believe that this is as it should be. The reforms, which gained widespread support during public consultation, are based firmly on the idea that ARCUK should be a minimalist body concentrating on the core functions of registration and discipline. The Bill was then returned to the Lords for approval of Commons’ Amendments. A particular set of amendments concerning a requirement to consult bodies of chartered architects before prescribing qualifications and experience needed for entry onto the register was approved. Lord Lucas, speaking for the Government, said:– We recognize that the RIBA plays a predominant role in architectural education and we do not wish the Board to duplicate that role. 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. Mistaken interpretation of the statute In a letter to the Chief Executive of the RIBA dated 24 January 2002, the then Registrar said: Ian Salisbury 9 May 2009 Page 4 of 12 “Leading Counsel’s view was that whilst the Architects Act makes no express provision for monitoring compliance with the Code, such a power was to be implied on the basis of a purposive approach.” Despite the public function of the Board, the Registrar refused to elaborate the legal advice received by the Board beyond the broad explanation given in his letter. However, it is understood that an officer of the Board informed a person on the Register that there were three cases that supported the Board’s position, being: A v. B (Governor of Bank of England Intervening) [1991] 1 Bank Law Reports. R v. Security Investments Board ex parte Independent Financial Advisers Assoc. & another [1995] 2 Butterworths Company Law Cases R v. Personal Investment Authority ex parte Lucas Fettes [1995] Occupational Pensions Law Reports At the induction meeting for new members of the Board held on 7 April 2003, the Board’s solicitor also referred generally to “a number of railway cases in the nineteenth century”, and with reference to Chancery, which allowed the court to imply terms into an Act and thereby to ask the question: “Are these implied things a reasonable understanding of the statutory purpose?”. But none of these cases provided authority for a purposive approach, and in respect of railway cases, the only relevant case is London and North Eastern Railway v Berriman1, a twentieth century case where members of the House of Lords came to slightly differing conclusions on the meaning of the word “repairing”2. All of their Lordships were however pursuing the ordinary meaning of the word which does not assist in support of the purposive approach. Authority for this purposive approach is provided unequivocally by the House of Lords in the landmark case of Pepper (Inspector of Taxes) v.