England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Hon Mr Justice Simon

		Royal Courts of Justice Strand, London, WC2A 2LL
		19 April 2013

The Hon Mr Justice Simon:

Introduction

1. This is a challenge to a decision of the Respondent ('the Board') which is brought under s.22(1) of the Architects Act 1997 ('the Act').
2. The Appellant is a former architect whose name was removed (or 'erased' as the Act puts it) from the Register of Architects following a decision of the Board's Professional Conduct Committee ('PCC') made on 29 July 2008.
3. On 11 October 2010, he applied for re-entry on the Register; and it is against the refusal of that application (made on 20 December 2011) that he appeals.

The Facts in outline

4. The Appellant is in his seventies, and his name was first entered on the Register in 1968.
5. On 11 September 2007 he was declared bankrupt in the Croydon County Court. It being recorded that he had failed to pay 7 judgment debts.
6. Section 14 of the Act requires the Board to issue a Code 'laying down standards of professional conduct and practice expected of registered persons.'
7. By Standard 9 of the Standards of Conduct and Practice (2002), Architects are required to ensure that their personal and professional finances are managed prudently. Standard 9.1 provides:

The following are examples of acts which may be examined in order to ascertain whether they disclose a wilful disregard by an Architect of their responsibilities or a lack of integrity, namely:

an order of bankruptcy

...

a failure to pay a judgment debt

8. Standard 10.5 contains an obligation to report to the Registrar within 28 days in the event of a conviction for an indictable offence or being made the subject to a bankruptcy order; and Standard 10.6 warns:

Failure to make a prompt report may count against the Architect in the event of disciplinary proceedings.

9. In 2006, a complaint was made to the Board by someone, whom it is convenient to refer to as Ms O, about the failure by the Appellant to repay a loan. At some time after September 2007 the Board also discovered that the Appellant had been made bankrupt and had failed report this to the Registrar, in breach of Standard 10.5.
10. The Appellant's case was referred to a disciplinary hearing before the PCC; and a hearing took place on 29 July 2008. At the hearing the PCC had a report prepared by the Board's Solicitors dated 3 April 2008. The facts were not substantially in dispute. The PCC heard evidence about the unpaid judgment debts, the impact of the Appellant's conduct on Ms O, the bankruptcy and the Appellant's failure to report it, and a property sale at an undervalue by the Appellant to the detriment of his creditors.
11. The PCC found that the Appellant's conduct amounted to 'unacceptable professional conduct' and imposed an order of erasure from the Register. The reasons referred to the facts outlined in the previous paragraph of this judgment.
12. Two points should be noted. First, there was no appeal against the order for erasure; and secondly, the issue before the PCC was the Appellant's professional conduct and not his professional competence.
13. On 31 March 2009 the Appellant was made a subject to a Bankruptcy Restriction Order ('BRO') under §2 of Schedule 4 of the Insolvency Act 1986, which was ordered to continue for a period of 7 years (until 31 March 2016).
14. By 29 July 2010, a period of 2 years had passed since the making of the erasure order; and (under the statutory scheme) it was open to the Appellant to apply for re-entry on the Register. On 11 October 2010 he made that application.
15. On 27 April 2011 the Registrar of the Board wrote:

The Board will consider the steps you have taken to ensure that in future there would be no possibility of issues arising which may be deemed to be unacceptable professional conduct or serious professional incompetence. They will also need to consider the issues which arose during the [PCC] case. Therefore it would be helpful if you could address the following:

...

2. I note that you are currently subject to a [BRO] and I am sure that this will be of concern to the Board in considering your application for registration. It would be helpful if you could provide some information concerning how the [BRO] came into place as it commenced in 2009 following your erasure ... in 2008.

...

I believe it is particularly important that the Board is in possession of sufficient information to consider how your position has changed since your erasure from the Register, at the direction of the [PCC]. Currently, I do not believe that I can recommend your reinstatement to the Register, particularly in view of the [BRO] put into place in 2009 which does not expire until 2016.

16. The Appellant's reply dated 5 May 2011 was not reassuring. He explained the circumstances in which he had sold his house, and which had given rise to the BRO.

I do not believe that I acted improperly, nor that that this event which occurred in 2005 should have any bearing on my ability to function effectively as an architect.

17. On 21 July 2011 the Registrar prepared a paper for the Board in advance of the meeting which was to consider the Appellant's application for readmission. Mr Ball drew attention to the summary of the reasons why the Registrar did not recommend re-entry on the Register:

2.1 Reinstatement after only two years would only be appropriate in the least serious of cases and this is not such a case.

2.2 The continued application of a [BRO] makes reinstatement in the absence of exceptional facts inappropriate in the public interest.

18. Mr Ball argued (for reasons to which I will return later) that the public interest was irrelevant. However, it is important to record that (read as a whole) the Report was a comprehensive review of the considerations which should bear on the judgement of the Board when considering whether or not to direct the Appellant's re-entry. For example, it warned that,

... the Board should not simply follow the duration of the [BRO] when considering reinstatement, but is entitled to take into account the view that the Court found that restrictions should be placed on [the Appellant's] activities ...

19. On 20 December 2011 the Board wrote to the Appellant notifying him that it had decided not to re-enter his name on the Register. It agreed with the recommendations of the Registrar (which had been updated on 15 December) and said that it took into account further particular considerations during discussions.

a) That the [BRO] was of much greater concern than a simple bankruptcy, involving both a finding of blameworthy conduct and imposing restrictions considered necessary for the protection of the public ...

b) That the expectations of a registered person were high as exemplified by the Code of Conduct, and these included responsibilities in relation to financial management, guidance and dealing with clients. The standard required was higher than that applied to members of the public generally. These expectations were based on the public interest, both in respect of public confidence in registered persons and the protection of clients.

c) The Board did not have confidence that so soon after the relevant events, the applicant had changed his attitude to his professional responsibilities and the balance between his financial interests and those of others.

20. On 20 March 2012, the Appellant issued a Notice of Appeal against this decision.

The Grounds of Appeal

21. There are three grounds of appeal challenging the impugned decision. First, it is said that the decision was ultra vires, since the Board dismissed the application for re-entry on the basis that the Appellant was not 'a fit and proper person', and thereby applied the wrong test. Secondly, it was manifestly unfair to rely on the subsequent BRO to extend the erasure period beyond 2 years. Thirdly, the decision was unlawful, in that the refusal was disproportionate and contrary to the Appellant's rights under the European Convention on Human Rights ('the ECHR'), as enacted in the Human Rights Act and/or the Charter of Fundamental Rights of the European Union (the 'Charter').
22. There is however, a logically prior issue which is taken by Mr Collins: namely, whether the decision under s.22(1) gives rise to any statutory right of appeal or whether the only basis for challenging the decision is by Judicial Review.

The Statutory Scheme

23. At the heart of the Appellant's challenge is the contention that it was not open to the Board to refuse the Appellant's application to be re-admitted other than on the basis that it took an adverse view of his competence.
24. Before considering this, and the other arguments advance by Mr Ball, it is convenient to summarise the statutory scheme.
25. The Act established the Board, and an obligation to maintain a Register of Architects (s.1). A person is entitled to be registered if he or she has the necessary qualifications and experience, or the equivalent standard of competence (s.4).
26. Section 14 is headed 'Professional misconduct and incompetence.'

(1) Where an allegation is made that a registered person is guilty of –

(a) unacceptable professional conduct (that is, conduct which falls far short of the standard required of a registered person); or

(b) serious professional incompetence,

or it appears to the Registrar that a registered person may be so guilty, the case shall be investigated by persons appointed in accordance with rules made by the Board

If there is a case to answer, the persons appointed under s.14(1) report their findings to the PCC .

27. Sub-sections 14(3)-(6) provide that the PCC should consider whether the registered person has been guilty of unacceptable professional conduct or serious professional incompetence, and for a hearing to be held where this is sought.
28. Section 15 deals with Disciplinary Orders:

(1) [The PCC] may make a disciplinary order in relation to a registered person if –

(a) it is satisfied, after considering his case, that he is guilty of unacceptable professional conduct, or serious professional incompetence, or

(b) he has been convicted of a criminal offence other than an offence which has no material relevance for his fitness to practise as an architect.

29. A 'disciplinary order' is defined in s.15(2) as:

(a) a reprimand,

(b) a penalty order,

(c) a suspension order, or

(d) an erasure order

30. As already indicated the Appellant was made the subject of an erasure order on the basis that he had been guilty of unacceptable professional conduct; and there was no appeal against that order.
31. The effect of an erasure orders is set out in s.18.

(1) Where an erasure order is made in relation to a registered person, the Registrar shall remove his name from the Register and it shall not be re-entered in the Register unless the Board so directs.

(2) No application shall be made for the name of a person in relation to whom an erasure order has been made to re-entered on the Register:

(a) before the end of the period of 2 years beginning with the date of the erasure order or such longer period specified in the erasure order as the Professional Conduct Committee considers appropriate in a particular case.

32. It is convenient to summarise the effect of s.18 in the context of the present case. First, the period of an erasure order (unlike a suspension order which takes effect for a period of less than 2 years, see s.17) is unlimited. Secondly, nevertheless after a period of 2 years (or such further period as the PCC may specify in the order) an applicant can apply for his name to be re-entered on the Register. Thirdly, at that point the Board decides whether to accede to the application. I shall return later to the nature of that decision.
33. Section 22 deals with Appeals.

(1) A person may appeal to the High Court ... if he is aggrieved by:

(a) refusal of his application for registration in Part 1 of the Register;

(b) failure of the Registrar to comply with section 6(4);

(c) his name not being re-entered in, or his name being removed from Part 1 of the Register by virtue of section 9;

(d) the Board's ordering under section 10 that the Registrar removes his name from Part 1 of the Register; or

(e) the making of a disciplinary order against him.

The Appellant relies on s.22(1)(c) or alternatively (a)

34. Section 9 is headed 'Competence to Practise.'

(1) Where the Board is not satisfied that a person who,

...

(c) 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

35. Mr Ball submitted that, unless the PCC specifies otherwise, an applicant can apply for re-entry after 2 years; and the Board then has no power to refuse re-entry on grounds other than incompetence. In the terms of CPR Part 52.11(3)(a) the decision of the Board was wrong.
36. The proper interpretation of these provisions is in many ways a matter of impression. The words 'shall not be re-entered on the Register unless the Board so directs,' appear to confer a very broad discretion on the Board to decide whether to allow re-entry, although it is plainly a discretion that must be exercised judicially and not unreasonably.
37. Leaving aside criminal conduct, disciplinary powers are reserved for two types of conduct: unacceptable professional conduct and serious professional incompetence. In each case, the Board must decide whether to direct re-entry (see s.18(1)); and in each case the Board must also be satisfied of an applicant's competence to practice before he is re-entered on the Register. Where an applicant has been removed for incompetence, it is clear why there is a need to demonstrate competence before re-entry on the Register; but the fact that an applicant has not been practising during a period of erasure on the grounds of unacceptable professional conduct may also give rise to a need to demonstrate competence to practice.
38. The distinction between the two grounds for making disciplinary orders carries over into the rights of appeal in s.22. An applicant has a right of appeal in relation to the second stage of the test for re-admission, continuing competence, under s.9(1)(c); but does not in relation to other relevant considerations.
39. Although Mr Ball submitted that it was anomalous to draw a distinction between the two grounds for refusing re-instatement, it seems to me that what amounts to unacceptable conduct and what sanctions should be imposed for such conduct is pre-eminently for the disciplinary body of a profession. In any event, as Mr Collins submitted, that is what s.22 says; and an applicant is protected by a right to seek Judicial Review in an appropriate case.
40. It follows from this that I reject the submission that the Board was bound to accede to his application for re-entry on the Register on the basis that no issue was raised as to his competence; and I also reject the submission that the Appellant has a right of appeal under s.22. The only basis of challenge open to him was a claim for Judicial Review on conventional Public Law grounds.
41. Although no such claim has been issued, I indicated during the course of submissions that I would consider and reach conclusions on the submissions that Mr Ball had made on the appeal to see whether his client would be entitled to relief by way of Judicial Review of the decision. There was no injustice in adopting this approach, since the Grounds in support of the appeal under CPR Part 52.11(3)(b) could be expressed in the form of a Public Law challenge. Nevertheless parties should not assume that, if they adopt the wrong basis of challenge (thus avoiding the permission stage) the Court will necessarily permit them to do so. In any event, in this context Mr Ball relied on similar arguments to those he raised on the appeal: that the decision was ultra vires, that it was manifestly unfair and, in any event, that it was unlawful as being inconsistent with Articles 8 and A1/P1 of the ECHR and/or the Charter.
42. So far, as Mr Ball's argument as to the Board's powers is concerned, it follows from the conclusion that I have already reached that I do not accept that the Board exceeded its powers in the decision it made on 20 December 2011. It had a broad discretion as to how it should approach the application under s.18(1) which was not confined to considerations of competence.
43. Mr Ball submitted that the decision was manifestly unfair because, in effect, after the PCC had implicitly indicated that the appropriate period of erasure was two years, the Board had effectively 're-sentenced' him to an indefinite period of erasure. In my view this argument misstates the nature of the original order. An order for erasure made under s.15(1) does not specify a period of erasure. Section 18(2) enables a person to re-apply after a period of two years, or a longer period if this is specified. In the present case he applied after two years and the Board directed he should not be re-entered on the Register at that point. This was not a re-sentence, it was the refusal to order re-entry for the reasons which were stated.
44. Mr Ball also submitted the decision was manifestly unfair because the Board took account of irrelevant factors in refusing to direct re-entry. He submitted that, in so far as the Board took into account issues of public protection and public confidence, it acted impermissibly. I reject this submission. The test is whether, despite the conduct which has fallen short of the professional standard required of a registered person and which has led to the disciplinary order of erasure, the person should be readmitted. Although there is nothing in s.18(1) which precludes the Board taking into account public protection and confidence, the decision of 20 December 2011 was based on the Board's view that the Appellant had not changed his attitude to his professional responsibilities: there was a continuing concern about unacceptable professional conduct.
45. So far as Mr Ball's argument based on Articles 8 and A1/P1 of the ECHR, and Article 15 of the Charter is concerned, it is clear (and Mr Collins accepted) that the Board acts as a public authority. However I do not accept that the provisions of the Convention and Charter assist the Appellant on the facts of this case. Although, the professional sphere may form part of an individual's private life (see, for example, Niemitz v. Germany (1993) 16 EHRR 97), it does not follow that every interference with professional life engages Article 8. Furthermore, even if it did, the interference here was plainly in accordance with law and amounted to a proportionate means of protecting the public from unacceptable professional misconduct by an Architect. Nor can the Appellant rely on A1/P1, which is concerned with the deprivation of possessions and not the right to earn future income as a registered architect; and again, the rights conferred by A1/P1 are subject to the deprivation being in the public interest and subject to conditions provided for by law. The relevant provisions of the Act set out a fairly standard and proportionate regulatory regime for the protection of those who may be affected by unacceptable professional conduct, serious professional incompetence or convictions of material offences by registered architects.
46. Nor, in my judgement is the Applicant assisted by the Charter. Rights in relation to the free movement of workers do not prevent national regulatory bodies from laying down professional rules in relation to appropriate professional standards of conduct.

Time-limits

47. Mr Collins drew attention to the Practice Direction to CPR Part 52: 52 DPD 20 §19.1(1)(a) and (3), which appears to suggest that an appeal under s.22 of the Act must be filed within 28 days. If this were so, then the appeal would have been out of time. However, s.22(2) of the Act provides that an appeal must be made 'not later than 3 months after the date on which notice of the decision or order concerned is made is served ...' It seems to me that the Practice Direction is in error and cannot override the clear terms of the statutory time-limit.

Conclusion

48. It follows that I find that the Appellant's appeal fails, and would not have succeeded if properly framed as a claim for Judicial Review