My draft submission on the Registration of Architects in Ireland February 19th 2013

Draft Proposals –prior to submission to the Draft Report from the Joint Oireachtas sub-committee Report.

Senator Cáit Keane representing the FG group on the Working Sub-committee established by the Joint Committee on the Environment, Culture and the Gaeltacht to evaluate & make recommendations on the Registration & Training of Architects in Ireland.

Overview:
I am making this draft recommendation on behalf of the Fine Gael Group prior to submission to Sub-committees.
It analyses how we might go about assisting the process of a reasonable and fair assessment procedure at a realistic cost to enable the two classes of professionally trained architects to be considered for registration and training. This is a finite group of professionally trained architects. The solution that has been applied to this throughout Europe is that of a time-limited or self –extinguishing registration process which assesses acquired rights. In all cases the assessors should be independent, accountable and suitably qualified in the tasks. I note we do not have an Independent body in Ireland, it is under the control of Architects the RIAI.

There are two classifications of Architect to be considered here. Group A : have prior, lawful establishment before the introduction of registration in the State as introduced under the provisions of the Building Control Act of 2007. This group of Architects comprises Architects who have learned their profession entirely ‘on the job’ and also those who have academic qualifications that are not recognised by the Building Control Act. The Architect’s Alliance of Ireland (a professional association charged with protecting the interests of self-trained and other architects in Ireland) estimates the figure to be at 250 and Royal Institute of Architects Ireland RIAI (the Regulatory and statutory body for Architects in Ireland) estimates it to be 350 but this is probably at the high end.
Group B consists of Architects who have trained on the job and do not hold academic qualifications in Architecture and who have no claim to prior establishment in the state. This group would be those who started their training in the profession after 2008 or did not have the required ten years lawful establishment prior to 2008 (when the Act was commenced).
I will be referring to these two groups of Architects later in my submission and concluding by offering solutions to overcoming barriers to registration for Architects in the state who cannot legally register due to the limitations enforced by the Building Control Act 2007.

Registration/Regulation of Architects in Ireland History Overview:
The question of registration of the Architect’s profession was first considered in 1941 .The issue arose again in the seventies and 1979 and this is verified by an extract from 2006 Europe Day document which states that:
Quote “…. the Department of Industry and Commerce had been dealing for some time with the domestic question of legislation to provide for the registration of the title of Architect in Ireland…” At this time, the RIAI (Royal Institute of Architects in Ireland – the largest professional body representing the sector in Ireland) were informed that difficulties had arisen with the type of scheme envisaged by them and suggestions were made by my Department to the RIAl about tackling the matter in a manner considered to be more acceptable”. ENDS QUOTE . This process did not result in a regulation mechanism being legally established.
A significant development affecting the regulation of Architects in the European Union occurred with the passing of the EU Architects Directive (85/384/EC. A proposal for an EU Directive for architects was first mooted in 1967 and but was not adopted until June 1985. The Directive is concerned with ensuring Europe-wide access into the profession by migrant architects.

Unlike other Member States, Ireland failed to make provision for the recognition of all its Architects (Ireland transposed this EU Directive into national law with the passing of the Building Control Act 2007). However, the only Irish Grandfather Architects acknowledged in the Directive were members of the Royal Institute to the exclusion of all other established and professionally-trained architects in the State including those from four other Architect’s Representative bodies; the Irish Architects Society, the Faculty of Architects and Surveyors, the Incorporated Association of Architects and Surveyors, the Chartered Institute of Building(note – all now subsumed into AAoI the Architects Alliance of Ireland).
Under the 1985 Directive, each member state recognizes the diplomas, certificates and other evidence of formal qualifications (for list, see Article 11), awarded by other Member States to nationals of the Member States, where such nationals already possessed these qualifications at the time of notification of the Directive, or their studies leading to such diplomas, certificates and other evidence of formal qualifications commenced during the third academic year at the latest following such notification (system of acquired rights).

In 1997 The Strategic Review of the Construction Industry (set up by Government) publishes its report. Registration of the titles ‘Architect’ and ‘Quantity Surveyor’ are amongst the recommendations – subject to there being a ‘grandfather clause’ (#3.29).

In 1990, a Fair Trade Commission (FTC) Report was completed on the 23rd March. In relation to the registration of Architects it states that, “Having examined the implications of the Directive and after considering the representations from IAS, FAS, IAAS and CIOB, it is considered that it is likely that the non-inclusion of any of the architect members of the above bodies has been unfair and unjust. On page 55, it states that, “registration could be achieved at a low cost which would be paid for by those who are registered. A {single} part-time Board {for the registration of architects, surveyors, etc} with services provided by the Department of the Environment might be appropriate.”
The Fair Trade Commission Report also recommended that “any assessment process should be fair and transparent “
As you know Minister In the same year, the Irish State proposed amendments to the Architects Directive (and in July 2000 they were rejected by Europe). The State sought to make amends for having “overlooked” (this is the word used by Minister Brendan Smith in a Parliamentary Answer) a whole class of lawfully practising Architects during the consultation stage of the Directive.

The Department realised and acknowledged in the early nineties that they had made an error in excluding a large group of Architects in Ireland who were not members of the RIAI during the consultation process of the Directive. This is evidenced by the decision taken in 1993/4 when the Department of the Environment announced procedures for inclusion on the ‘Minister’s List’ which was to accompany Government’s proposal for an amendment to the Directive under direction of Minister Brendan Howlin. This list was finalised in 1997 and consisted of 170 Architects who were excluding from practicing in Ireland under the 1985 Directive. (I requested this list from Oireachtas Library, but seemingly not laid there?) Subsequently, I have been informed by the AAoI that 140 Architects on that list were admitted automatically to the RIAI(the RIAI has control over the accreditation and registration process of Architect in Ireland and were given statutory powers under the Building Control legislation of 2007) and 30 admitted as result of interview.

Registration/Regulation in other countries:
Many countries established professional registers for architects and included all their lawfully established practitioners under the new regime. This was done in countries like the Netherlands and France; U.K.; Italy, Belgium and others, through the insertion of a Grandfather Clause into the relevant legislation. A Grandfather clause is an exemption for certain classes of people or things from the requirements of a piece of legislation affecting their previous rights, privileges, or practices. It is an exception that allows an old rule to continue to apply to some existing situations, when a new rule will apply to all future situations.

In relation to the registration of Architects, A Grandfather Clause is temporary and self-extinguishing. It applies only to those practitioners who can demonstrate prior establishment.
Whereas the other procedures are “alternative” and permanent means of entering the profession, open to all who are job-trained under the new registration regime. A Grandfather Clause recognises past achievements which of course cannot be embellished or added to for the purpose of registration – their scope and merit are already fixed.
The registration exercise is to demonstrate past work, to prove authorship, to submit tax, insurance or other such evidence and to thereby confirm prior establishment. It is a purely objective assessment with no room for bias or misinterpretation – and should be completely independent.

FRANCE

The legislation regulating the practice of architecture in France is dated from the 3rd of January 1977. The name of the legislation is: “Loi n°77-2 du 3 janvier 1977 sur l’architecture.” It regulates the practice of architecture rather than the title “Architect”.

Article 37 of the legislation permitted established self-trained practitioners with five years of experience in the field of architecture gained prior to the publication of the law to be automatically listed on the French Register of Architects. Article 37 also details the composition of a committee in charge of assessing practitioners who did not comply with the requirement of having five years of experience.

NETHERLANDS
The legislation regulating the title of “Architect” in the Netherlands is dated from the 7th of July 1987. The Name of the Legislation is: ”Wet op de architectentitel van 7 juli 1987”.
For clarification, the Architects’ Directive 85/384/EEC of 10-06-1985: Article 11.h. – Netherlands
Under the Dutch Grandfather clause, a certificate issued by the competent authorities only to persons who have reached the age of 40 years before the date of entry into force of this Directive, certifying that, over a period of at least five years immediately prior to that date, the person concerned had pursued architectural activities the nature and importance of which, in accordance with Netherlands requirements, guarantee that he is competent to pursue those activities of an architect. (Personally I do not agree that Age should be mentioned-Ageists legislation)

Ireland: The Building Control Act 2007: SI 21/2007
It is worth noting that Ireland is one of the rare European countries to have omitted a grand-father clause in its legislation. It is also the only country in the European Community to have included national restrictions (not EU criteria) for the assessment of self-taught architects
Regulation of the profession of architect was introduced under Part 3 of the Building control Act 2007 which provides for the Statutory protection of the ‘title’ of architect whilst avoiding protection of the ‘function’ (see State and EU Competition laws). The Act specifically denies automatic registration to every Directive-compliant Irish architect apart from full members of the RIAI, whilst necessarily granting automatic registration to all non-Irish EU Directive-compliant architects.

It contains no Transition Period, no standard Grandfather Clause, no Independent Registration Body and no distinction is made between the Statutory Registration Body and the appointed organisation that is The Royal Institute of Architects of Ireland RIAI Consequently all registrants are hindered by not having de facto membership of that organisation.

Through the Act, registrants are offered the option of joining the association (S.14.4), but are charged and treated as members regardless of exercising their Constitutional right not to join any private association. Unlike in other States, initial and annual registration fees are high. The annual fee of the RIAI upon registration is €490.00 – I am not quite sure what this annual fee covers –or what individual Architects can expect, but under section 23 of the Building control Act 2007 the registration body has the power to establish a ‘Professional Conduct Committee’ which can bring disciplinary action against registered architects. This Professional Conduct Committee has never been established and it should now be established.

In the Act no provision whatsoever is made for an Independent evaluation/organisation to become the Registration Body. There is no provision for independent oversight of statutory rule-making (for the profession) by the Registration Body and there is no deadline set for publication of the registration body’s annual report, five years after the Act has been in operation. This situation is totally unacceptable and I would recommend it should be rectified.
On its website the RIAI defines itself as, “the Regulatory and Support body for Architects in Ireland. Support services are also provided for Architectural Technologists……Although the RIAI carries out a statutory function as the Registration Body and Competent Authority for Architects in Ireland this is carried out on an entirely self-funding basis. The RIAI does not receive any Government Funding or State Aid for this Statutory Function.”
Therein lies another problem; the fact that is entirely privately funded organisation even though it is written into law as a statutory body with authority afforded to it by the state. A solution to this problem would be to separate the Registration/ & education of Architects from the other duties of the RIAI and to place it under one of the bodies such as SOLAS/HETAC/FETAC (now amalgated to QQI –Quality & qualifications Ireland. See recommendation on this further on re SOLAS/HETAC acting as Independent body.

Many graduate architects (N.U.I. and other) continue to exercise their Constitutional right in not becoming members of the RIAI -Royal association.

I have to get actual figures of numbers of members of the RIAI –as I have various figures looking back on RIAI Figures, but I understand it may be as little as 500 RIAI registered architects at this time (many are graduates but others are not). In 2003 The Indecon Report for the Competition Authority on the architectural profession Published Summary, page XV:- “The way in which ‘Grandfather’ Independent Architects and some members of the Group of Independent Architects in Ireland (GIAI) will be

Assessed for entry to the proposed new register of architects (i.e. through the RIAI) could act as a barrier to entry to the profession going forward.” (Today 10 years on from that report I surmise this is exactly what is happening).

N/B/ The European Ombudsman decided last week, February 14th 2013 that section 21-22 of the 2007 Act is in breach of European law due to national restrictions imposed on experience.
A complaint lodged by a French Architect working in Ireland presently concerns a breach of European Law (workers freedom of movement) as per the requirement of 10 years experience to be gained in the Republic of Ireland in sections 21-22 of the Building Control Act 2007.
The European Commission also ruled last year that, as it is only the title “architect” which is protected, there are no issues for employment, no discrimination related to workers freedom of movement.

Proposed Solutions:

In relation to the two categories of Architect that currently cannot register due to the limitations imposed by the Building Control Act 2007, there are solutions. For the first group of Architects who have prior establishment, I propose that those who do not have academic qualifications sit an independent assessment/exam to prove their competency in architecture but that those prior established architects who have already have third level qualifications be exempted from the post-graduate written examination in architecture. This is an established academic examination with appropriate and recognised standards. It is conducted by several universities in the State. No university diploma or award shall be granted to successful, “Grandfather” candidates, however their individual passing of such an exam, should be a condition of their acquisition of the title of grandfather architect. See clause under on Examinations exemptions re (c) Those who can demonstrate 10 years of prior establishment in the State. Today in 2013, 10 years prior-establishment amounts to almost 15 years of lawfully and competently making one’s living as an architect in Ireland.

The first group who have prior lawful establishment in the state could also be enabled to register if a grandfather clause was inserted into the legislation that would be either five years retroactive, that is, it would be applicable to prior lawfully established Architect who had practiced in Ireland for at least five years before the commencement of the 2007 Act. Five years was the qualifying period for those on the Minister’s List and for “Grandfathers” in other Member States.

Technical Assessment applicable to ‘grandfathers’ would become redundant but as an alternative, those architects purporting to be grandfathers would have to prove that they were lawfully established in the state prior to the 2007 Act. This could be done by furnishing financial accounts, evidence of professional indemnity insurance, client verification and tax records.
I propose that all supporting documents that those eligible to gain grandfather status should be submitted to the Minister for the Environment, Community and Local Government or a new independent registration body i.e. removing this aspect from the RIAI.

Examination exemptions could apply in the following limited instances:-
a) Those with Directive-compliant, academic qualifications.
These Irish university qualifications are already listed in the Directive.
In other words, they meet the European standard for mutual recognition.

b) Those with relevant, third level qualifications or other relevant accreditations.
Although such qualifications are not Directive-compliant, this exemption is felt to be
appropriate and reasonable in the context of acquired-rights especially as registration will
not confer Directive-rights to those architects, only re-instatement in the State itself.

c) Those who can demonstrate 10 years of prior establishment in the State.

Today in 2013, 10 years prior-establishment amounts to almost 15 years of lawfully and
competently making one’s living as an architect in Ireland.
Then there are the second group of Architects to consider; those who do not have prior lawful establishment in the state. This type of architect will have trained exclusively on the job and will not have any University or third level qualification in architecture and will have begun his or her architecture training after the commencement of the Building Control Act, from 2008 onwards. They would be working in a practice of an established or prior established architect. An example of such an architect would be an engineer who opted for a shift into the practice of architecture, who has worked in an architect’s office for a number of years but does not have a qualification in architecture.
For this second group of architects, a grandfather clause could not apply. This group could avail of an Accredited Prior Learning (APL) route to registration as an architect. It would be independent of professional interests and would set incontestable standards for future, non-university training as an architect. The concept of lifelong learning indicates that learning should encompass the whole spectrum of formal, non-formal and informal learning. Learning occurs in many contexts that include work, involvement in social and community activities, or learning through life experience generally.

This would establish a recognised vocational route into the profession of architecture as an alternative to the University/academic route. It would take maybe two or three years to implement by the Minister for Education and Skills and a subjects and a syllabus would have to be agreed before it could become operational. This could be done by Ministerial order (Directive) as part of the Further Education & Training Bill 2013 section 8 or in the Education and Training Boards Bill 2012 section 9.

The Education and Training Bill 2013 is an act to provide for the establishment of a Body to be known as an tSeirbhsi Oideachais leanúnach agus scileanna (SOLAS), to provide for the dissolution of an Foras Áiseanna Saothair and the transfer of its functions to the said body to Solas. Under the aegis of SOLAS, this body could take over the education and training function from the RIAI thus making it independent.

An Alternative Avenue for Independent Accreditation & Training would be through Additionally the Further Education and Training Boards Bill 2012 (not brought before committee stage as yet (14/2/2013). This would offer the means for an Accredited Prior Learning (APL) route to registration as an architect- this would be under the auspices of HETAC./ now amalgamated into new Qualification & Quality Ireland QQI the new integrated body for quality and qualifications in Ireland and would be ideally suited for Architects. It would be independent of professional interests and would set incontestable standards for future, non-university training as an architect, recognising the Theory of Multiple Intelligences.

I do not think it is acceptable that persons who may/have ‘a vested interest’ should be charged with awarding Educational qualifications – recommendations. Take a hypothetical situation, if there were an oversupply of Architects in the country would be in the (monetary) interest of self- regulatory Architects to try and ensure that access to the qualification were limited? I stress this is hypothetical but perception is important, hence the Recommendation for an Independent assessors as per Independent Review Body in Scotland.

It would be up to the Minister when drawing up the regulations whether the Registration process would include both registration of Title and registration of function. Personally I would recommend that both should be separate. There are no procedural requirements in place for identifying and maintaining any separation between these functions. The consequences include shielding from action by both the Irish Competition Authority and the Ombudsman.
Note: The UK has an independent registration body called the ARB (Architects’ Registration Board) which is established to protect the public interest. The dominant professional association is the RIBA (Royal Institute of British Architects) with a duty to protect its members. The ARB and RIBA are quite separate entities. Statutory registration fees are paid to the ARB. Private membership fees are paid to the RIBA.

It is also imperative that a Disciplinary Committee as per section 23 be established in order to ensure that all practicing Architects adhered to all Guidelines as set down in various planning, Environmental, EU legislation etc. etc. This has not been established to date even though it is recommended in the Building Control Act 2007.

Building Control Regulations 2012:
The Building Control Regulations 2012 which have not yet been passed into law by the Minister will mean that only registered architects who are RIAI members will be able to lawfully sign-off on or certify building works. If these amendment regulations are passed into law, the 3 groups of professionals listed as certifiers, will be given a monopoly that will jeopardise many other professions.

The Minister received complaints from at least 2 groups of concerned professionals which are the Chartered Institute of Architectural Technologists (CIAT) and the Architects Alliance of Ireland (AAoI). However, if enforced, these Regulations would jeopardise other groups of professionals. Registered interior architects will not be permitted to certify the construction of their design when working on the refurbishment of a building or changing its use. Landscape architects will be prevented to certify the construction of their design when working on projects including small structures that they are fully qualified to design and build.
N:B SELF CERTIFICATION – SIGNING OFF ON BUILDINGS
The problem is not that qualified and other professionally trained designers will be prevented to certify the construction of their works. The problem is that other groups of designers with whom they are in competition, will have to do it instead. Minister I hope you do understand the blow that these professionals will have to endure with regard to this issue.

With the proposed regulations one person may be the designer, the builder and the certifier of a construction. In France the designer cannot be the contractor, so a minimum of 2 different parties are involved with the clients and the local authorities. In the UK, the designer and the contractor may be the same company, but the local government will certify the works, so a minimum of 2 different parties are involved with the clients. Allowing one person to legally be the designer, builder and certifier could be very damaging in terms of protection for consumers.
Ireland is unique in having a self-certification regime for construction. I don’t think self-certification in any sphere is to be recommended. Rather than stepping back from this highly unsatisfactory position, it is to be re-enforced under the draft certification regulations.

As I have stated the draft regulations make it possible for the same person to be the designer, the builder and the self-certifier!!
It has been stated by many in the professions that the accreditation of specific classes of persons as certifiers for this purpose is a contentious matter and will bring an end to many livelihoods.

The Architects Alliance have pointed out that
“the assurance provided by specific classes of persons depends upon the certifier rather than upon the
insurance. That assurance will lapse or fail when:-
The insurance is discovered to be inadequate for the particular risks;
The certifier fails to maintain his/her professional liability insurance;
The certifier leaves the jurisdiction;
The certifier dies;
The certifier makes a false undertaking.”

They point out that “A far more secure solution is provided by accrediting the insurance or the insurers.” This proposal avoids all charges of being anti-competitive and of sheltering particular professions.
Minister I would bring it to your attention that the Irish registration is bound under EU Legislation to recognises the “Grandfather” architects from across Europe and beyond. Each one is free to register, practice and certify in Ireland with no knowledge or experience of our laws on Planning, Building Regulations, Environment, Building Contracts, etc.

Also please note that the proposed reforms that Minister Shatter is recommending for the legal profession would introduce a fully independent regulatory body to oversee barristers and solicitors. Why can’t Architects have the same or at the very least an independent assessment process for Registration.
Minister Shatter strongly criticised the Bar Council’s position “The Bar Council continues to advocate the preservation of its exclusive reserve through the continuation of regulation of itself by itself,” his department’s statement said.

Minister, it is over to you to please consider those proposals from all the Fine Gael Group on the Oireachtas Environmental committee. I have taken it on myself to send this to you prior to the Official Submission that you will shortly be receiving from the working –group on the Joint committee for Environment Culture & Gaeltacht established to report on this subject.

Thank you for your consideration.
Cáit

Senator Cáit Keane
Representing Fine Gael only – not on behalf of the working group.