RIBA New Code of Conduct 2019

by Katerina Hoey

Updated RIBA Code of Professional Conduct:

The Royal Institute of British Architects (RIBA) published an updated Code of Professional Conduct on 8 April 2019, (“the RIBA Code”). This came into force on 1 May 2019 alongside new procedures for dealing with disciplinary issues.

The most significant aspect of the new disciplinary procedures is a change in the standard of proof from ‘beyond reasonable doubt’ to ‘a balance of probabilities’ (RIBA Disciplinary Procedures, para 9.16), aligning it with requirements set by many other professional and regulatory bodies, including the Architects Code (2017) of the Architects Registration Board, (“the ARB Code”).

While the RIBA Code still retains its three principles of ‘Integrity’, ‘Competence’ and ‘Relationships’, it has been expanded into a comprehensive 18-page document, incorporating an introduction section and non-binding guidance notes within the various provisions as well as a comprehensive list of defined terms.

‘Principle 1: Integrity’ has been significantly expanded and includes re-written and extended sections on the following:

  • ‘Impartiality and undue influence’;
  • ‘Statements’;
  • ‘Conflicts of interest’;
  • ‘Confidentiality and privacy’ (incorporating legislative requirements under GDPR); and
  • ‘Bribery and corruption’ (incorporating legislative requirements under the Bribery Act 2010).

New requirements have been added, relating to:

  • ‘Handling client money’ (aligning the RIBA Code with Standard 7 of the ARB Code); and
  • ‘Criminal conviction / disqualification as a director / sanction’ (aligning the RIBA Code with Standard 9 of the ARB Code as well as incorporating para 1.3 from RIBA Guidance Note 1).

‘Principle 2: Competence’ has been significantly expanded and almost entirely re-written. Extended sections include:

  • ‘Skill, knowledge, care, ability’ (aligning the RIBA Code with Standard 2 of the ARB Code regarding arrangements for work to continue in the event of a Member’s incapacity or worse);
  • ‘Terms of appointment’ (significant detail added);
  • ‘Time, cost, quality’ (including a new requirement under 3.4 regarding the need for specialist cost control advice); and
  • ‘Record keeping’ (incorporating legislative requirements under GDPR).

New requirements have been added, relating to:

  • ‘Health and safety’ (incorporating statutory requirements under the CDM Regulations);
  • ‘Inspection services’;
  • ‘Building Performance’ (aligning the RIBA Code with the updated Plan of Work, new section 7);
  • ‘Heritage and Conservation’;
  • ‘Town and country planning’;
  • ‘Law and regulations’;
  • ‘Certification’ (possibly in response to recent case law);
  • ‘The environment’ (aligning the RIBA Code with, and significantly expanding upon, Standard 5 of the ARB Code); and
  • ‘Community and society’.

Several obligations have been added to principle 2, which are significantly more onerous or may present a challenge in terms of assessment of an alleged breach and/or the application of the RIBA Code. These include:

  • 6: “Members must make appropriate arrangements for their professional work to continue in the event of incapacity, death, absence from, or inability to, work”. While this is already contained within the ARB Code (paragraph 2.2) and appears feasible for a medium to large practice, a small practice or sole trader is likely to breach this requirement on a regular basis. Guidance note GN 16 suggests that “appropriate arrangements” might include having an agreement with another local practice for them to offer to continue the work for the client. It is difficult to see how this might work in practice, however, and such an arrangement is unlikely to be of great benefit to a Client who will still need to put their project temporarily on hold while the new Architect plays ‘catch up’.
  • 14: “Members should reflect on and evaluate their own work”. It is not at all clear how any potential breach should be assessed or how fulfilment of this obligation could be demonstrated.
  • 2: “Members should endeavour to deliver projects that: (a) are safe; (b) are cost effective to use, maintain and service; and (c) minimise negative impacts on the environment during their anticipated life-cycle”. In the current climate, the definition of ‘safe’ is being continually re-assessed. Any reference to this obligation should be viewed, therefore, within the context of an Architect’s obligations under their Appointment, and the industry guidance available and regulatory framework in place at the time the work in question was carried out. Cost effectiveness in use, and impact on the environment during the project’s life cycle, may also present difficulties in interpreting what is reasonable in the circumstances. It will be preferable to clarify these so far as possible in the Brief and the instructions.
  • 4: “Members must take reasonable steps to protect the health and safety of those carrying out, or likely to be directly affected by, construction work for which they are providing professional services. This includes clients and members of the public”. While this would appear to align the RIBA Code with an Architect’s obligations under the CDM Regulations, the guidance notes (GN 6.2, 6.3 and 6.4) state that “‘reasonable steps’ may require doing more than is strictly required by law and regulations” (my emphasis). I anticipate challenges in assessing what may be considered ‘reasonable’ without clear reference to statutory requirements. I would expect an Architect’s obligation under this section of the Code to be assessed within the context of the obligations of other relevant parties, including the Contractor’s responsibility for the site during the construction period.
  • 9: “Members should practice evidence-informed design and should keep records of the evidence used in reaching design decisions”. The guidance note GN 13.9 advises that members should “keep written records of the evidence and data examined and used by them in reaching decisions in the design process… and any reasons for not acting on particular pieces of evidence considered”. This is an onerous obligation and I anticipate challenges ahead in assessing allegations of non-compliance.
  • 2: “In performing professional services, Members should promote stronger communities and improve equality, diversity and inclusion in the built environment”; this is an onerous blanket requirement that does not appear to take into account the requirements of the Client’s brief or any other contextual issues including assessment of existing equality diversity and inclusion. Reference to “in the built environment” is broad and I anticipate challenges ahead in assessing allegations of non-compliance and dealing with a potential proliferation of third-party claims.

‘Principle 3: Relationships’ has also been expanded and re-written in places. Extended sections include the following:

  • ‘Peers’ (new paragraph 3.4 aligns the RIBA Code with Standard 9 of the ARB Code);
  • ‘Equality, diversity and inclusion’ (incorporating legislative requirements under the Equality Act 2010);
  • ‘Employment and responsibilities as an employer’ (bringing in and expanding upon RIBA’s Employment Policy);
  • ‘Competitions’ (incorporating reference to applicable procurement law); and
  • ‘Complaints and dispute resolution’ (aligning the RIBA Code with Standard 10 of the ARB Code).

New sections add requirements relating to:

  • ‘Copyright’;
  • ‘Previous appointments’;
  • ‘Modern slavery’ (incorporating legislative requirements under the Modern Slavery Act 2015);
  • ‘Advertising / business names / use of RIBA crest and logo’ (incorporating previous RIBA Guidance Note 2 ‘Advertising’);
  • ‘Insurance’ (incorporating previous RIBA Guidance Note 4 ‘Insurance’ and bringing the Code in line with ARB Architects Code Standard 8);
  • ‘Non-disclosure agreements’; and
  • ‘Whistleblowing’.

Two obligations have been added to principle 3, which are significantly more onerous or may present a challenge in terms of assessment of an alleged breach and/or the application of the RIBA Code.

  • 4: “Members who become aware of a probable breach of the Code by another member shall report it to the RIBA Professional Standards team, with such supporting information and evidence as is available”. Further explanation of this obligation is provided in the guidance note (GN 3.4) which states that “failure to report a probable breach is only justified when prevented by law or the courts…”. While this requirement is included within the ARB Code (para 9.3), it is less stringent and requires reporting “in appropriate circumstances” and where conduct “falls significantly short”; the language used in the RIBA Code indicates that this applies to a probable breach of any aspect of the RIBA Code, which is broader in scope than that of the ARB.
  • 3: “Members shall use reasonable skill and care to use supply chains which are free from Modern Slavery”. Further explanation of this obligation is provided in the guidance note (GN 5.3) which states that “’Supply chains’ includes both materials and people. Members should be aware of the labour used in the extraction, manufacture and production of materials they use or specify, as well as the direct labour involved in their projects”. This wide interpretation of the supply chain imposes an onerous obligation on Architects; while appropriate enquiries can be made of Manufacturers during the specification process and in theory it is possible to incorporate a Modern Slavery statement by a Contractor into the tendering process, the expectation expressed in the guidance note that Members “should be aware of the… labour involved in their projects” is somewhat unrealistic.

The recent cases of Riva v Foster [2017] EWHC 2574 (TCC), Burgess v Lejonvarn [2018] EWHC 3166 (TCC) and Freeborn v Marcal [2019] EWHC 454 (TCC) highlight failures regarding obligations which are the subject of the amendments made the RIBA Code; these include:

  • ‘Skill, knowledge, care, ability’ and paragraph 1.9 “Members shall advise their clients in writing as soon as is reasonably practicable if the Member’s assessment of the likelihood of achieving the client’s requirements and aspirations changes during the project”: Freeborn v Marcal.
  • ‘Terms of Appointment’: Riva v Foster and Burgess v Lejonvarn;
  • ‘Time, cost, quality’ and paragraph 3.3 (b) “Members must carry out their professional work without undue delay and, so far as it is within their powers… in accordance with any cost limits agreed with their clients”: Riva v Foster;
  • ‘Keeping the client informed’: Freeborn v Marcal;
  • ‘Record keeping’: Freeborn v Marcal; and

To conclude, the updated Code has gone a long way in aligning itself with standards of professional conduct required by other regulatory bodies and has responded to updated legislation, regulation and recent case law. However, some requirements have been introduced that may cause difficulties in defining and/or assessing in terms of non-compliance. These may have been best left within the guidance notes.