I thank the Chairman and committee for giving us time to make our presentation. I am not specifically prepared in regard to the certification issue, which the Chairman just mentioned. However, I would be very glad answer questions on what might be our position in that regard. I can revert to that but for the time being, I have a paper I wish to present which has solely to do with the question of a grandfather clause or the inclusion of a grandfather clause in Irish law.
Our desired outcome of the hearing is that we succeed in presenting a good case for granting us equal treatment under the law with our fellow construction professionals. We believe failure to do that, as is the present position, means fewer architects on the State register of architects and fewer architects in the market. That means less choice, less diversity and less innovation. Put plainly, it means a closed shop. We hope for a decision by the committee to request the Minister's formal consideration of the solutions we have tabled in this paper and for its support for early implementation.
Since the last hearing new information has arisen. It is from the European Union and it has direct bearing on the discussions which took place in 2010. The European Union Commissioner has said there is no impediment under European Union law to the making of a grandfather clause for architects in Ireland. The Commissioner wrote, "In other words, the directive does not prohibit Member States from granting access to the profession of architect on their own territory to persons whose qualifications do not meet the Article 46 requirements".
I refer to the directive and the Building Control Act. It should be understood that the directive is concerned with facilitating access for migrant professionals within the EU. The directive is not about the raising of barriers to shelter chosen professions or professional bodies. Its inclusive intent is shown in the following extract from clause 28 of the preamble: "With a view to simplifying this Directive, reference should be made to the concept of ‘architect' in order to delimit the scope of the provisions relating to the automatic recognition of the qualifications in the field of architecture, without prejudice to the special features of the national regulations governing those activities". On the other hand, section 2(3) of the Act establishes that, "A word or expression used in Part 3, 4, 5 or 7 and which is also used in the Directive has the same meaning in that Part as it has in the Directive.” As regards the spirit of the Directive and its transposition into Irish law, the relevant word in the Act is ‘architect’.
I will now comment on the significance of the EC statement. We have but a small voice, yet we have fought hard and long. We have argued for effective regulation, for equality, justice and plain ordinary decent treatment under the law. Behind those important principles lies one cold hard fact, that we have been robbed of our livelihood. The Commissioner's statement shows how that can be lawfully remedied.
We contend that standards cannot be achieved if there is no competition. The current registration regime promised high standards for consumers through its favouring of school-trained architects whose performance in the real world is warranted by continuous professional development, CPD programmes. It promised adherence to building standards and professional codes. Above all it promised safe hands, effective redress and professional sanctions to guard against failure. The current, highly publicised building failures show otherwise and are a warning that fine words are not always matched by fine deeds. The Alliance supports regulation that safeguards the public and secures the public interest, regulation which is effective.
The registration of architects is a new arrangement but it was introduced without the benefit of a regulatory impact study. Inevitably that failure led to registration being gifted to the dominant representative body and to the marginalising, in fact criminalising, of their competitors. Restoring competition is central to achieving standards, both regulatory and professional. Ideally an entirely new registration system such as this one should start by creating a level playing field. It is not difficult to achieve, provided vested interests are ignored. It is simple enough. Everyone should be equally and anonymously examined according to the new standards. That is not what we have in the Act. Baccalaureate-style architects' register admission examinations exist. They are completed over a few days at official centres and the charges are modest. A transparent arrangement such as this would secure the public good and consumer interests. If we are past the point where that is feasible then a different approach is needed but it should be one that makes optimum use of proven skills already in the market or profession. Encouraging competition and diversity are surely more certain ways of achieving standards than the current arrangement.
The grandfather clause is very important to us. There is nothing exceptional about our request for a grandfather clause to be added to the Act. Indeed there are examples in Ireland and beyond of grandfather provisions which apply to an already-defined and finite body of practitioners. The qualifying measure is usually that of tenure or longevity in making one's living in a particular field. Evidence of successful prior establishment is the proof demanded. Grandfather clauses are inherently self-extinguishing, though often there is a cut-off date for applications of two or three years. A transition period operates meanwhile. Several member states introduced grandfather clauses for architects as a matter of natural justice. Clearly their major professional bodies did not howl in rage. It must be remembered that we are talking about disenfranchised professionals, who practised successfully and safely and entirely within the law of the day. However, we actually need look no further than the Act itself and the directive for grandfather provisions. Parts 4 and 5 of the technical assessment procedures for surveyors would be acceptable models for a Part 3 technical assessment or grandfather clause for architects. Already in Part 3, there are 179 acquired-rights architects identified as being eligible for both automatic registration and automatic rights under the Directive. They qualified for inclusion in the Minister's list on the strength of five years' establishment.
We believe the European Commission statement makes it clear that a standard grandfather clause for Ireland's architects would be entirely compatible with European law. The grandfather clause is a readily-achieved, uncomplicated solution and it might read as follows:
Providing a technical assessment for architects which is equivalent to the technical assessment already provided in the Act for surveyors, who are fellow construction professionals. We would expect to provide evidence of five years of prior-establishment, which is the same as applied to those on the Minister's list and covered by the Act.
This is our preferred solution and its' justice is plain for all to see. We lobbied very successfully towards that solution both before and after the first hearing in May 2010, only to be presented with a legal obstacle. Our allies, the media and also Government were informed that such a solution was inconceivable and was not permitted by European law. That mistaken but influential opinion held sway until February 2012, when it was swept aside by the European Commissioner with the new information.
That experience has taught us to be cautious. Many of us are of an age when two further years of delay would be like ten years to a younger person. Therefore we are also tabling an alternative solution. It is intended to answer a genuine legal obligation which may be found for architect grandfathers to demonstrate more than prior establishment in order to be registered in the State. The solution has two parts, because it deals with qualifications. The first part, labelled B1, would provide for registration of those with relevant third level qualifications or accreditation by relevant established professional bodies - subject to providing evidence of having made their livings as architects for five years prior to the Act. The second part, labelled B2 of this solution, is for those of us without academic qualifications or accreditations of that kind and it would provide registration for those who pass or have passed the post-graduate written examination for architects conducted by UCD - subject to providing evidence of having made their living as architects for ten years prior to the Act.
For this two-tier proposal to succeed we would require simple assurances that the purpose, scope and cost of the post-graduate written examination would not deviate and the Royal Institute of the Architects of Ireland, RIAI, would continue to have no involvement in the setting or making of the examinations or in any appeals. These academically-directed solutions are not the solutions we prefer. We believe the argument for a standard grandfather clause and equal treatment with surveyors is well made. We believe it is not warranted to make these demands unless it resolves a genuine legal issue for the registration of grandfather architects in the State. We table it for that purpose.
In our view an amendment to the Building Control Act 2007 is unavoidable, irrespective of our plea for a grandfather clause to be added. There are several impediments to the due operation of the Act as it stands. One is financial in so far as the RIAI is proposing to engross its own private membership charge within the statutory registration fee. The Minister has so far declined to prescribe a registration fee. Another is the absence of a permanent mature entry route called the PRAE. The Minister has so far declined to prescribe the sole privately run examination which has been recommended by the RIAI for that purpose. Other defects in the Act are profound and explain the Minister's reluctance to appoint members to the professional conduct committee and, we understand, to the appeals board. In spite of all the claims and assurances, the Act provides no means for actual redress for consumers. Instead, it deals ineffectually with the chastising of wayward architects. We are aware the European Ombudsman is investigating a complaint concerning Part 3 of the Act because of its failure to consistently recognise periods of work undertaken in other member states.
The Act requires amending provisions, which makes the addition of a grandfather clause in Part 3 rather less troublesome than it seems.
