Dowland v Architects Registration Board

Architect – Registration – Section 9(1)(c) of the Architect’s Act 1997 – Appellant architect becoming bankrupt and removed from register of architects – Appellant applying for reinstatement – Respondent board refusing application – Whether reinstatement being limited consideration of appellant’s professional competence – Appeal dismissedThe appellant was a former architect, first registered as such in 1968, who had been declared bankrupt in September 2007. In July 2008 the Professional Conduct Committee of the Architects Registration Board (the respondent) decided to remove (erase) him from the Register of Architects for  “unacceptable professional conduct” by reason of his bankruptcy, his history of debt problems and his sale of a property at an undervalue to the detriment of his creditors. On 11 October 2010, the appellant applied for re-entry on the register but his application was refused on the ground, inter alia, that there was a bankruptcy restriction order (BRO) against him which was in place until March 2016.Section 9(1)(c) of the Architects Act 1997 provided: “Where the Board is not satisfied that a person who … applies for his name to be re-entered in Part 1 of the Register under section 18, has gained such recent practical experience as the Board may prescribe, his name shall not be entered or re-entered in Part 1 of the Register, or shall be removed from it, unless he satisfies the Board of his competence”.The appellant appealed under section 22(1) of the 1997 Act contending, in essence, that it was not open to the respondent to refuse his application to be re-admitted other than on the basis that it took an adverse view of his competence. Unless the practice committee specified otherwise, an applicant was entitled to apply for re-entry after two years; and the respondent had no power to refuse re-entry on grounds other than incompetence. He also argued that it was manifestly unfair to rely on the subsequent BRO to extend the erasure period beyond two years. Furthermore, the decision was unlawful, in that the refusal was disproportionate and contrary to the appellant’s rights under the European Convention on Human Rights (ECHR) and/or the Charter of Fundamental Rights of the European Union. Held: The appeal was dismissed. (1) The proper interpretation of the relevant provisions was in many ways a matter of impression. The words “shall not be re-entered on the Register unless the Board so directs”, appeared to confer a very broad discretion on the respondent to decide whether to allow re-entry, although it was plainly a discretion that had to be exercised judicially and not unreasonably. Leaving aside criminal conduct, disciplinary powers were reserved for two types of conduct: unacceptable professional conduct and serious professional incompetence. In each case, the respondent had to decide whether to direct re-entry pursuant to section 18(1) of the 1997 Act. The respondent also had to be satisfied of an applicant’s competence to practice before he was re-entered on the register. Where an applicant had been removed for incompetence, it was clear why there was a need to demonstrate competence before re-entry on the register; but the fact that an applicant had not been practising during a period of erasure on the grounds of unacceptable professional conduct might also give rise to a need to demonstrate competence to practice. The distinction between the two grounds for making disciplinary orders carried over into the rights of appeal in section 22 of the Act. An applicant had a right of appeal in relation to the second stage of the test for re-admission, continuing competence, under section 9(1)(c) but not in relation to other relevant considerations. What amounted to unacceptable conduct and what sanctions should be imposed for such conduct was pre-eminently for the disciplinary body of a profession. An applicant was protected by a right to seek judicial review in an appropriate case. It followed that the submission that the respondent was bound to accede to the appellant’s application for re-entry on the register on the basis that no issue was raised as to his competence would be rejected.(2) The respondent had not exceeded its powers. It had a broad discretion as to how it should approach the application under section 18(1) which was not confined to considerations of competence. An order for erasure made under section 15(1) did not specify a period of erasure. Section 18(2) enabled a person to re-apply after a period of two years, or a longer period if specified. In the present case the appellant had applied after two years and the respondent had directed he should not be re-entered on the register at that point. This was not a re-sentence but a refusal to order re-entry for the reasons which were stated. The test was whether, despite the conduct which had fallen short of the professional standard required of a registered person and which had led to the disciplinary order of erasure, the person should be readmitted. Although there was nothing in section 18(1) which precluded the respondent taking into account public protection and confidence, its decision was based on the respondent’s view that the appellant had not changed his attitude to his professional responsibilities. There was a continuing concern about unacceptable professional conduct. (3) It was clear that the respondent acted as a public authority. However, the human rights provisions did not assisted the appellant on the facts. Although the professional sphere might form part of an individual’s private life, not every interference with professional life engaged ECHR article 8. The interference in this case was plainly in accordance with law and amounted to a proportionate means of protecting the public from unacceptable professional misconduct by an architect. The relevant statutory provisions set out a fairly standard and proportionate regulatory regime for the protection of those who might be affected by unacceptable professional conduct, serious professional incompetence or convictions of material offences by registered architects.David Ball (instructed by Duncan Lewis) appeared for the appellant; Ben Collins (instructed by Russell-Cooke) appeared for the respondent.Eileen O’Grady, barrister