JOINT COMMITTEE ON ENVIRONMENT AND LOCAL GOVERNMENT díospóireacht -
Wednesday, 26 Apr 2006

Building Control Bill: Presentations.

Chairman

In advance of our last meeting, a letter from the Competition Authority that appended a report on the professional services provided by architects was circulated to members. The letter also referred to its concern with the Building Control Bill 2005 which will change the way in which the architectural profession is regulated. With Committee Stage of the Bill due before the select committee shortly, we agreed at our last meeting to invite a number of organisations from the industry to discuss any concerns they may have. Members will recall the first presentation to us on this Bill was from the chief fire officers at our last meeting, and a list of their concerns was forwarded by this committee to the Minister for the Environment, Heritage and Local Government.

I welcome the representatives from the Competition Authority, the Royal Institute of Architects in Ireland and the Group of Independent Architects of Ireland. I propose we take their presentations together with a question and answer session after the third presentation.

From the Competition Authority I welcome Mr. Bill Prasifka, chairman, Ms Carol Boate, manager, advocacy division and Mr. Declan Purcell, director, advocacy division. I thank them for attending the joint committee meeting today. I also welcome officials from the Group of Independent Architects of Ireland, namely, Mr. Jerry Hannigan, chairman of the GIAI, Mr. Conor Finnegan, secretary, and Mr. Brian Hunt of Mason Hayes and Curran Associates. From the Royal Institute of Architects of Ireland, I welcome Mr. John Graby, director, Mr. James Pike, president, and Mr. Tony Reddy, past president. I thank them for their attendance this afternoon.

Before the presentations commence, I draw attention to the fact that, while members of the committee have absolute privilege, the same privilege does not apply to witnesses appearing before the committee. Members are also reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable.

Mr. Prasifka from the Competition Authority may like to commence his presentation.

Mr. Bill Prasifka

I thank the Chairman for his introduction and thank the committee for giving us the opportunity to speak before it. Members have a copy of my opening remarks. I will not read them but will just make a few brief remarks.

The report promulgated by the Competition Authority was prepared and published prior to my joining the authority, so in order to give full answers to questions posed, I will defer to my colleague, Ms Carol Boate, who was responsible for much of the preparation of the report.

A report on competition services is part of our broader remit and role in looking at a variety of professions. During all of that analysis, at the heart of the Competition Authority's advocacy remit, and all our other remits, is that the interests of consumers be paramount. Our mission is to ensure that competition works for the benefit of consumers. It is particularly in that context we want to comment on the Building Control Bill 2005. We note that the Bill opts for a system of registration of architects and that the Competition Authority recognises that in the context of the architectural profession as it exists today in Ireland, such a move can be beneficial to consumers. This is not a conclusion we take lightly or universally with regard to all groups, but after carrying out a systematic analysis of the profession in Ireland we have reached that conclusion.

We want to note certain reasons we have come to that conclusion. The first is that there is, as an economist would note, a frequent asymmetry of information between consumers and architects. Many consumers would not be technically qualified so the registration of title of "architect" contains very important information for consumers. It gives them confidence that whoever has that title is someone who can suitably carry out the work. We also note that the way in which it is being implemented has many pro-competitive benefits. For example, in the context of bidding or participating in certain competitions, the registration system to some extent opens such competitions up to those who are not members of the Royal Institute of Architects or on the Minister's list.

For reasons such as this we see a registration system in this context as being potentially in favour of competition. However, we are concerned that the new system of registration and regulation be enacted according to the best international practice and in a system which allows for transparency, accountability and independence. All our comments are made in light of those last points. We would like to see the system ultimately enacted establish the integrity, transparency and independence of the system of regulation. We note that there is much in the Bill which embraces concepts of independence. We note the presence of people who are not architects on many of the committees. We welcome that and want that continued. I will give a few examples of how we would like to see that independence, integrity and transparency enhanced.

Specifically, under the legislation as drafted, the Royal Institute of Architects of Ireland will be the registration body and will maintain the register. It has to write and amend the code of conduct, appoint all the architect members for relevant committees and the chair of the committee. In appointing all the architect members of the committees and the chair there is the possibility of decisive influence being exercised by those appointed by the Royal Institute of Architects of Ireland. In effect, it will be the front line for complaints from consumers.

The Competition Authority is concerned about the fusion within the Royal Institute of Architects of Ireland of what should be two distinct roles. Its representational function is entirely appropriate in that there should be an association that represents the interests of architects. We do not disagree with that. That they should also have such a forward position in terms of the regulatory function is not consistent with best international practice and goes against the way the professions, the regulations and the thinking have developed in Ireland. One has only to look at the report of the better regulation group of January 2004 which noted the difficulty of fusing the representational function with the regulation function. When we look at other professions in Ireland, we see a medical council, a dental council, an optician's board and a variety of other councils where there is separation of the regulatory function from the representation function. We can cite other examples of international practice. There are many different ways in which architects are regulated around the world. Each one, perhaps, has its own weaknesses and strengths. Particularly in the Irish context, statements were made recently about the Medical Council which is independent. We appear to be moving towards greater independence with people outside the profession. Without wishing to overstate our case that is our broad concern. There is much in the legislation that we welcome. We are prepared to acknowledge that registration can be pro-competitive in this case but there are certain aspects of its implementation in terms of transparency and integrity that we wish to see strengthened.

Chairman

I thank Mr. Prasifka. I now invite Mr. Hannigan, chairman of the Group of Independent Architects in Ireland to make his presentation.

Mr. Jerry Hannigan

I am the chairman of the Group of Independent Architects in Ireland and I am accompanied by our secretary, Mr. Conor Finnegan.

I thank the joint committee for inviting a delegation from the Group of Independent Architects in Ireland to make a presentation. The GIAI represents more than 60 practising architects and was established in 1994, with the objective of ensuring that our members would be treated in an equitable manner in any major policy or legislative reforms affecting or governing the profession. In practical terms, this has led to the GIAI's involvement in the process which the Department of the Environment, Heritage and Local Government commenced — the assessment of architects under the proposed amendment to the EU directive on architects. This, led to the establishment of what is known as the Minister's list.

The impetus for the registration of architects came from the forum for construction industry which first suggested a registration system for the title architect. The GIAI was then invited by the Minister to form part of a sub-group which considered the whole issue of registration. The GIAI was also consulted by the Competition Authority in drawing up its report and as part of that process we made submissions to the authority.

The GIAI's primary concern regarding the Bill is the regulation of the architects' profession. There are a number of other important aspects of the Bill which focus on fire safety and other issues. We would like to place on the record our full support for those aspects of the Bill.

The GIAI has been awaiting the introduction of a registration system for architects for several years. It was one of the key factors that influenced the establishment of our organisation. We have always looked upon the regulation of the profession in a positive and constructive way. We see the Bill as an opportunity for the profession to strengthen itself and in some respects, reverse the damaging effect which some unscrupulous operators have had on the profession. We also see the Bill as a means of levelling the playing field in respect of the provision of architectural services for the public.

In that context we engaged with the Minister for the Environment, Heritage and Local Government and his officials when the heads of the Bill were being prepared. At that time, we put forward a series of amendments designed to address weaknesses and defects in the Bill. Many of our members will submit themselves for technical assessment under the grandfather clause, to the registration body. We see this as being a critical aspect of the Bill and we also put forward amendments which reflect our concerns. While we welcome the thrust of the Bill, our members are concerned at the extent to which some of the matters raised have not been taken into account and are not reflected in the Bill, as published. The areas which separate us from the RIAI and the Department are not insurmountable, however, as the right to continue practising as an architect and in turn, the livelihood of some of our members are at stake, their resolution is critical.

We welcome the publication of the Bill and, subject to some our concerns being addressed, it should be enacted before the summer recess. We have considered its provisions in great detail, in particular Part 3, which deals with registration.

I would like to outline briefly some of the main areas about which we are concerned. The first relates to the absence of a transition period. Section 15 prohibits people from using the term architect. For some of our members this means that once section 15 is commenced, they will no longer be able to practise. This is despite the fact that they may have applied to go through the assessment process. In stark terms, what the Bill is saying to some of our members is that, under section 15, they will effectively be put out of business, until they go through the assessment procedure and prove they are worthy of the title. This is an unreasonable approach. What we are proposing is that architects should be given a period of three years in which to have themselves assessed before the section 15 prohibition takes effect.

The next issue of concern relates to the grandfather clause. The assessment procedure for architects which forms an important part of the Bill is commonly referred to as a grandfather clause. We are disappointed that the Bill as published does not utilise the term "grandfather clause". This is not just an issue about terminology or style. The term "grandfather clause" is a term of art and it carries an established technical meaning. We would like to see the term being used in the Bill. We are concerned that the omission of the term "grandfather clause" indicates a desire on the part of the Department to move away from the true significance of the term.

Somewhat related to that concern are our concerns about section 19 which details in general terms the information an applicant will be required to submit to the technical assessment board. We are concerned that the technical assessment procedure will place an inappropriate and disproportionate reliance on the academically oriented criteria. It is vital that when persons are being assessed under the grandfather clause, full recognition will be given to the value of practical training and that it is in no way inferior to the training one acquires through academic training. We are concerned that the nature and extent of information that will have to be supplied could be used a means to set a higher standard than is necessary. The GIAI is also concerned that the Bill allows the registration body to formulate details of what is required, in a vacuum, without any consultation. In the interests of equity, the GIAI would like to be actively involved in that process.

The Bill does not contain any time limit within which the technical assessment board must come to a conclusion on an applicant. From the point of view of the applicant, this is unfair. We want to avoid applicants being left waiting for a decision in 18 to 24 months time. The approach adopted in section 18 is in stark contrast to the approach taken in other sections where time limits are provided for. We propose that a series of outer time limits be set within which each phase of the assessment process must be completed. This would afford a period of approximately 12 months for the technical assessment board to come to a conclusion on any one individual.

Last March, the Competition Authority published its final report on competition in the architectural profession. While we support some of the recommendations of the competition Authority, the Building Control Bill represents the best way forward for the regulation of the profession.

The GIAI has already contributed in a constructive way to the formulation of the heads of the Building Control Bill and we wish to contribute further to the shaping of the Bill given that it is about to embark on Committee Stage. However, in view of the impact the Bill, in its present form, could have on our members. we would welcome the support of members of the joint committee for the changes we seek. We look forward to the Minister taking on board our concerns by amending the legislation prior to enactment.

Chairman

I ask Mr. Graby from the Royal Institute of Architects in Ireland to make his presentation.

Mr. John Graby

I thank the joint committee for allowing me to make this presentation.

The Royal Institute of Architects in Ireland, RIAI,is the representative body for professionally qualified architects. It has 2,600 members and 550 practices, and employees in the public or private sector account for 62% of our members, with the remainder made up of principals in private practice.

The provisions of the Building Control Bill, important reforming legislation which is welcomed by the Royal Institute of Architects in Ireland, extend much wider than professional registration of architects. At the heart of the Bill is the question of consumer protection. The fundamental principle underpinning the registration of architects is that legal standards and recognised qualifications protect the consumer and secure quality and safety in the built environment. How significant is the problem? Last year, independent research carried out by TNS-MRBI on behalf of the RIAI found that 77% of those surveyed believed the use of the title "architect" indicated that a person had obtained qualifications. Interestingly, when it was pointed out that this was not the case, 89% of respondents indicated that the possession of qualifications was personally important to them.

Members may have seen an RTE "Prime Time" programme last year which highlighted the problems one unqualified architect caused to members of the public. While the programme focused on a single case, an RIAI survey found that it received 141 complaints about unqualified architects in 2004.

What kind of problems arise? We have encountered cases of misrepresentation, the forging of planning permission and fire certificates and architects disappearing when things start to go wrong, leaving members of the public without redress because most people do not have sufficient funds to take a case before the courts. Typically in such cases, a large amount of money has been paid out in advance and the work is not done properly. We have encountered people who were in tears and in a state of nervous collapse but, unfortunately, the institute is unable to do anything for them. This is a real problem for the consumer and one which lies at the heart of the Bill.

It is important that no changes are made to the well-worded section of the Bill which addresses the title of "architect". It would be a matter of concern to the RIAI if there was any implication or possibility of ambiguity in this regard.

The Bill has been presented as introducing a form of self-regulation when it proposes the establishment of a system of co-regulation, whereby the State and a major professional body work together to ensure registration of all appropriately qualified professionals. This process has been recognised by the European Parliament as one in which a government delegates a function to a non-governmental or private organisation, while applying appropriate legislative safeguards and continuing to make an input following enactment of the relevant legislation to ensure independence and transparency. It is not, therefore, a matter of merely establishing a framework but one of monitoring it afterwards. Co-regulation is the prevailing model for regulating architects in the European Union.

This Bill is complex and far-reaching. It makes important changes to the building regulations, including in the area of disability access and new arrangements for fire safety certificates, energy performance and alternative energy plans. The RIAI has five areas of concern, namely, professional conduct, admissions, board membership, technical assessment and the role of a registrar. An effective, robust and responsive professional conduct system is the cornerstone of any registration process. If this system does not work, the entire process will fail. The institute proposes a number of detailed, technical amendments to address the issue but I do not propose to address them now.

Two fundamental problems need to be addressed by way of amendment. Unfortunately, the way in which the Bill defines the term "professional conduct" means it will only be possible to deal with cases of gross professional negligence. The definition does not cover issues of major concern to consumers, namely, poor performance, inadequate communications, general incompetence and poor standards of service. For this reason, the institute seeks changes in this area. The Health and Social Care Professionals Act 2005 provides an excellent model for addressing this matter. If the current provisions stand, members of the public will only be able to take a complaint in limited circumstances.

The second area in need of amendment relates to the longstanding issue of ensuring the investigation and hearing of a case are separate, reflecting the process by which the Garda investigates and the courts decide. The RIAI is also concerned if the code of conduct were to become the responsibility of a professional conduct committee, rather than a registration body. The same principle applies — that law-making is different from enforcement. Registration bodies carry out this function and do not delegate it to another committee.

With regard to admissions and prescription of courses for registration, architects from all over the world are coming here to work. The membership list of the RIAI features people from countries beginning with every letter of the alphabet. As the Bill is not sufficiently flexible to accommodate all of them, it needs to be amended.

We also have concerns about the provision that the Minister will prescribe courses for registration. The Department of Education and Science, NQAI, HEA, HETAC and other bodies should be involved in this matter. The RIAI will propose amendments to ensure the system is sufficiently flexible to accommodate all architects who wish to come here.

While the RIAI fully supports the provision to have a lay majority on the admissions, professional conduct and appeals boards, the relevant section includes no reference to competence or skills. We seek to have the Bill include a definition of different skills and competences, similar to that provided by the Tánaiste and Minister for Health and Children in the Health and Social Care Professionals Act 2005. The architect members of the boards must have the requisite range of competence and should be nominated rather than elected. As an example of the shortcomings of elections, members of the architects registration board in the United Kingdom recently elected a majority of members on a specific ticket of reducing or eliminating the powers of the body.

The RIAI recognises that technical assessment is a complex area which will create the greatest difficulties. Established procedures must be followed, rather than invented by the registration body. HETAC and FETAC, for example, already apply procedures under a practice known as "recognition of prior learning", which involves giving appropriate weight to practical experience. The RIAI has engaged in dialogue with the Group of Independent Architects of Ireland, GIAI, on this issue and initiated discussions with HETAC on the matter. The institute will consult all relevant parties to ensure the system is fair.

To make a small point connected to an issue raised by the representatives of the GIAI, 500, 1,000 or 2,000 people could apply for technical assessment. To be able to deal with unexpected numbers of applicants, the assessment board needs the power to expand by way of regulation or as described in the Bill.

The final point is relevant from the point of view of independence. The admissions board to the register is independent and has a lay majority. One can understand the reason that all admissions should be processed by the board given that architects may wish to exclude people, keep numbers in the profession down and raise the bar too high. All applicants should be assessed on a qualitative basis. If an architect has a qualification listed in the relevant EU directive, he or she must produce nine specific documents prior to registration. This is an administrative matter which does not involve qualitative decisions and, as such, the process cannot be influenced. The registrar should have the power to act in this area. The services directive has strengthened the concept that registration formalities should be completed on-line, at a distance and on a one-stop shop basis. One lists one's qualifications on-line, provides transcripts and other information after which one can be registered immediately. It is impossible, therefore, for a registration body to influence this process.

As I stated, this is important reforming legislation which will provide significant consumer protection. It could be enacted now with the resources, funding and expertise of the RIAI. Nevertheless, changes are required in the areas of professional conduct, admissions, prescription of courses, technical assessment and the role of registrar. The appendices to our submission contain papers on registration, co-regulation and independence and architectural education generally.

Deputy Quinn

As I must be in two places at once, I ask the delegation not to view my departure in eight or nine minutes as a walk-out. On international practice and the difference between independent regulation and co-regulation, given that Ireland is a relatively small economy with a relatively small administration, economies of scale and cost will not arise. In light of Mr.Graby's comment that the body administering registration will have a lay majority — we will address the question of the competence of its lay members later — does Mr. Prasifka not agree that the proposed arrangement reflects common sense and will give us the best of both worlds? Could the ideological obsession of the Competition Authority not be tempered by the fact that a relatively small group of people are involved?

Mr. Prasifka

In this context, current practice in Ireland is the best internationally. For example, an independent opticians board operates in the opticians' profession. The Competition Authority does not regard its proposals as effectively adding to any body of work. As matters stand, registration will be required and various committees will have to be established. The authority is not, therefore, asking for any additional work to be carried out.

In terms of boards already in place, for example, the Medical Council, current thinking appears to be that they should be given greater independence and transparency and the roles of regulation and representation should be separated. It is true there is a lay majority on various committees but the chairperson also appointed by the Royal Institute of Architects in Ireland has a deciding vote. While this is legislation that embraces many of our ideas, it obviously means there is a need for independence but in certain technical senses it does not go far enough. We do not accept that this is talking about creating an entirely new bureaucracy. These are functions that will have to be performed by someone.

Deputy Quinn

May I follow up on that point? If Mr. Prasifka accepts that these functions have to be performed by someone and the burden of costs of an independent bureaucracy is not what any of us want, what would he add to the existing proposed structure in the Bill that would meet his concerns which are valid?

Mr. Prasifka

For example, the most important issue that may be missing from the entire debate is the public perception that there is independent regulation. That should not be underestimated. Our first proposal would be for an independent architects' council. Under the current system, if a consumer has a complaint he or she has to telephone the Royal Institute of Architects in Ireland as the first point of call. If one wishes to look at more technical amendments those are set out in our report. For example, we suggest the chairperson should be appointed by the Minister, rather than by the Royal Institute of Architects in Ireland and that the code of conduct should not be drawn up by the Royal Institute of Architects in Ireland but by the committee which has a majority of lay members. We set out a number of technical amendments. The overall point, which is an important one, is that there should be a public perception that this is an independent body. We see that as enhancing the reputation of the architects' profession. We would not want to see the legislation enacted as it is today and have to revisit this issue if there is a public perception, which may be illusory, that the body is not independent.

Deputy Cuffe

I welcome the various contributions. I echo Deputy Quinn's concerns at the creation of a completely new independent body that might result in higher costs for practitioners wishing to register. We are not dealing with a large country but with a relatively small group of people and I am concerned if we have to set up yet another body to administer this. I declare my interest as a member of the Royal Institute of Architects in Ireland. I am concerned at having to set up a new body that might incur costs in its own right.

Mr. Prasifka

My colleague notes that, for example, there are 650 optometrists in the country and there is an independent optometrists' board. That model is here. There are 1,340 dentists here and again there is an independentdental board.

Deputy Quinn

I too declare an interest as a member of the Royal Institute of Architects in Ireland.

Deputy Grealish

I am not a member of the Royal Institute of Architects in Ireland. I welcome the delegation and thank it for the comprehensive presentations made to the joint committee. We have much reading to do. Did the delegation make submission to the Department prior to the Bill being drafted and, if so, have many of the proposals been taken on board?

Chairman

To whom is the Deputy addressing his question?

Deputy Grealish

I am addressing my question to all three groups.

Mr. Prasifka

I will pass that question to my colleague who was present for that part.

Ms Carol Boate

We spoke to the Department about the drafting of the Bill. Our report on architects contained a preliminary recommendation that if the Department decided a system of registration was necessary for architects it should ensure the system was the most independent, transparent, accountable system as per the better regulation principles. What we meant was that it should not be run by the profession but should be run in an independent manner, along the lines of the health and social care profession registration system recently set up, and referred to earlier by the Royal Institute of Architects in Ireland. We met Department officials and explained what we meant by that and gave examples of where it could be more independent or less independent. I understand from the Department that one of the reasons it decided to have a majority of lay persons on each of the committees came from discussing the matter with us. I guess there was nothing to comment on until the Bill was published.

Chairman

Does anybody from the GIAI wish to comment on Deputy Quinn's question?

Mr. Hannigan

We made submissions as the Bill was being developed but were not able to have one to one meetings with the Department which was frustrating. We found we were dealing with officials on a third hand basis. The reason we are here today is that not all our proposals are in the Bill.

Mr. Graby

This process started in 1997 with a review of the construction industry which was set by Government. That review said there should be registration of architects on a self-funding basis on the model of the engineers' charter. On that basis the various bodies that represent architects came together and made a submission to the forum for the construction industry which was accepted by Government, and we started on the process of drafting the legislation. We had an input to the legislation on a confidential basis because it is highly technical, involving issues such as qualifications, the architects' directive and so on. As with the GIAI and the Competition Authority we certainly did not get all we wanted. There was a reasonable amount of discussion with the Department. Certainly issues such as a lay majority on the admissions board, appeals board and the professional conduct board cause us no problems.

Senator Brady

I too welcome the delegations appearing before the joint committee. I shall direct my question to Mr. Hannigan. In his presentation he said he sees the Bill as an opportunity for the profession to reverse the damaging effect some unscrupulous operators have had on the profession. Has that damage been quantified? Does Mr. Hannigan have an idea of the numbers involved? Has any research been done in that area? My second question is directed to the RIAI which receives a number of complaints from clients or from people within the profession. Is there any other forum through which clients can make complaints? For example, does the Ombudsman have an input into dealing with complaints?

Mr. Hannigan

We are a small organisation and do not have resources to quantify such matters. Our members are in practice and in competition with whoever is providing architectural services. Often we come across cases where we have to take over a job from somebody who is providing an inefficient service.

Senator Brady

Is that a regular occurrence?

Mr. Hannigan

It could happen quite often and it might be a job one would not want to take on. Often we get a client with a serious problem that we have to address.

Mr. Graby

As I said, we receive approximately 200 complaints per year about unqualified architects. I have given some examples of what happens. These are the people who can find us and are prepared to talk about it. Unfortunately we can do nothing for them. These are really sad cases. As for another forum, they can go to court but most of the people we talk to would not have the resources. If the complaint concerns a member we have a developed complaints system. We can intervene and we can ask the architect to do certain things. We have a mediator, who is available at no cost to the client, to try to sort out the problems. Last Friday I got a letter from a person who went through this process and was very pleased because the problem was sorted out. On occasion we ask the architect to give back whatever he charged because he has not given a proper service, or else complete the job free of charge. There is a well-developed complaints procedure in place. Indecon, which carried out an analysis of the architects' profession for the authority, said the RIAIs complaints procedure was not biased against the consumer but was fair. Unfortunately, it is the only place one can go with a complaint. The benefit of the registration system is that there is somewhere people can go and get redress and the matter should be sorted out.

On the point I made concerning the need to define professional misconduct properly, I emphasise that consumers are not concerned by major legislative issues. If rainwater is getting into their house because a kitchen wall has been removed and the architect has disappeared, the client wants the problem sorted out immediately and not six months later. The RIAI would always advise that they resolve the problem immediately and make a complaint afterwards.

It is easy to paint a picture of professional conduct as completely separate from practical problems. The RIAI has a practice director who spends considerable time talking to clients, advising them how to write a letter to their architect or intervening directly with the architect. While problems do not always arise, construction is a complex process and things go wrong. The institute provides a range of services to the public. If a matter involves a member, we seek to provide a service, advice, information, mediation and a professional conduct procedure regarding all architects working here.

Chairman

I thank the three delegations for attending. Members are grateful to them for taking time to travel to Leinster House. I am sure party spokespersons will be aware of the concerns they expressed today when tabling amendments to the Bill. The joint committee will also bring the presentations to the attention of the Minister for the Environment, Heritage and Local Government.

The joint committee adjourned at 3.25 p.m. until 2.30 p.m. on Wednesday 10 May 2006.