Dáil Éireann - Volume 632 - 01 March, 2007

Building Control Bill 2005: Report Stage.

  Mr. B. O’Keeffe: I move to recommit in respect of amendments Nos. 1 and 20 to 26, inclusive. When this Bill was published in 2005 it was intended that it would transpose certain provisions of the EU directive on energy performance of buildings of 16 December 2002.

  Mr. Quinn: If these amendments will be recommitted can I discard the Ceann Comhairle’s letter to me stating that my two amendments are out of order because they were not tabled on Committee Stage? The letter states that amendments Nos. 36 and 45 for Report State must be ruled out of order.

  An Ceann Comhairle: The recommittal of those amendments can be moved when they arise. They do not arise from the Minister of State’s amendments.

  Mr. Quinn: We accept the proposal to recommit.

Bill recommitted in respect of amendments No. 1.

  Mr. B. O’Keeffe: I move amendment No. 1:

In page 5, lines 6 to 10, to delete all words from and including “TO” in line 6 down to and including “BUILDINGS;” in line 10.

The provisions in section 5 of the Bill are no longer necessary. Amendment No. 1 proposes to delete the reference in the Long Title to the implementation of the directive. Amendment No. 21 deletes section 5 and related references in section 4(j). Deputy Cuffe’s amendments, Nos. 22 [1478] to 26 inclusive, refer to section 5, which amendment No. 21 proposes deleting.

Amendment No. 20 inserts a new subsection under section 4 of the Bill. Section 4 provides for the amendment of the Building Control Act 1990 to provide for revised procedures with regard to revised fire safety certification and disability access certification of buildings. The categories of work cited under this section refer to new buildings, extensions or material alterations. The amendment provides that where reference is made to the category of work as a material alteration of a building, it will be construed as including a material change of use, not just works on a building. A change of use may have implications for fire safety standards and brings the section into line with the 1990 building regulations.

  Mr. O’Dowd: The Disability Federation of Ireland and the Irish Wheelchair Association have expressed strong views with regard to buildings. How will this impact on what the Minister of State has said?

  Mr. B. O’Keeffe: It does not impact on them.

  Mr. O’Dowd: How can we address their concerns? My amendment No. 14 was ruled out of order.

  An Ceann Comhairle: When it comes to Deputy O’Dowd’s amendments he can move to recommit them to Committee Stage.

  Mr. O’Dowd: What does that mean?

  An Ceann Comhairle: It will be a matter for the House to decide whether to recommit them to Committee Stage. They could then be discussed as Committee Stage amendments.

Amendment agreed to.

Bill reported with amendment.

  Mr. Quinn: I move amendment No. 2:

In page 5, line 21, after “Control” to insert “and Professional Registration”.

The argument has been made before. It would be a more accurate description of the amended legislation, which purports to amend the existing building control legislation but because professional registration for architects, building surveyors and quantity surveyors is provided for, my amendment would give a more accurate description of the Title.

  Mr. B. O’Keeffe: This Bill amends the Building Control Act 1990 and the two Acts will be cited together as the Building Control Acts 1990 and 2005. The Bill deals with the registration of building professionals. I understand why the amendment is proposed but in order to allow this Bill [1479] to be construed with the building control code the wording as set out in the Bill is correct.

  Mr. Quinn: I do not accept the advice of the Minister of State.

Amendment put and declared lost.

  Mr. Quinn: I move amendment No. 3:

In page 5, between lines 28 and 29, to insert the following:

“(4) Notwithstanding subsection (3), section 16 shall not be commenced until at least 3 years have elapsed after the commencement of section 10.”.

A category of people will be affected by this Bill. They will have to apply to be examined and assessed to determine if they meet the terms of the Bill. We suggest that the part affecting them should not come in until it is properly commenced to ensure there is no vacuum between the commencement of the rest of the legislation and the section that affects them.

  Mr. B. O’Keeffe: Deputy Quinn raised this issue on Committee Stage and, as I understand it, his concern is that from the commencement of section 15 it would be unlawful for anyone who was not registered to use the title architect but that there was no provision for a period of time for people to register. Since Committee Stage my Department has considered this matter with the parliamentary draftsmen. Our amendments Nos. 56 and 57 will meet the Deputy’s concern. It is preferable to preventing the coming into effect of the prohibition of the unlawful use of the title of architect under section 15 until at least three years after the establishment of the RIAI as the registration body under section 10. I hope the Deputy can withdraw this amendment.

  Mr. Quinn: Amendments Nos. 56 and 57 do not adequately meet my concerns so I am pressing the amendment.

Amendment put and declared lost.

  An Ceann Comhairle: Amendment No. 4 arises out of committee proceedings. Amendments Nos. 4, 7, 13 and 42 are related and will be taken together by agreement.

  Mr. B. O’Keeffe: I move amendment No. 4:

In page 6, between lines 2 and 3, to insert the following:

“ “Agreement establishing the World Trade Organisation” means the Agreement establishing the World Trade Organisation done at Marrakesh on 15 April 1994 as amended or supplemented by any protocol to that [1480] Agreement which is for the time being in force in the State;”.

This group of amendments seeks to insert some necessary new definitions and to extend and clarify existing definitions under the Bill. The amendments are inserted as advised by the Parliamentary Counsel and define references relating to the World Trade Organisation and to member states of the European Union. They relate to the mutual recognition of building professionals from other EU and WTO countries.

Amendment agreed to.

  Mr. Quinn: I move amendment No. 5:

In page 6, between lines 6 and 7, to insert the following:

“ “architect in practice” means an architect who has been working on a full-time basis as an architect for at least two out of the previous three years;”.

This is an attempt to clarify definitions because they affect people who may not have formal qualifications but who, by virtue of their practice and daily working lives, are deemed to operate as architects. It should not cause a difficulty.

  Mr. B. O’Keeffe: This amendment relates to later amendments tabled by Deputy Quinn in which he proposes inserting a requirement that where architects are appointed to various boards under the Bill a certain number should be architects in practice. This could, however, unnecessarily restrict the operation of the Act because it may be difficult at times to get sufficient practising architects to serve on boards. I will explain this further when we come to discuss those amendments but in the circumstances I am unable to accept this amendment.

Amendment, by leave, withdrawn.

Bill recommitted in respect of amendment No. 6.

  Mr. B. O’Keeffe: I move amendment No. 6:

In page 6, line 9, after “qualifications” to insert the following:

“as amended by Council Directive 2006/100/EC of 20 November 2006 adapting certain Directives in the field of freedom of movement of persons, by reason of the accession of Bulgaria and Romania”.

This is a drafting amendment which seeks to insert some necessary new definitions and to extend and clarify existing definitions under the Bill. The amendment extends the definition of Directive 2005/36/EC of 7 September 2005 and includes Directive 2006/100/EC of 20 November 2006 in regard to freedom of movement of per[1481] sons on the accession of Bulgaria and Romania as new EU member states.

Amendment agreed to.

Bill reported with amendment.

  Mr. B. O’Keeffe: I move amendment No. 7:

In page 6, between lines 14 and 15, to insert the following:

“ “member of the World Trade Organisation” means a party to the Agreement establishing the World Trade Organisation;”.

Amendment agreed to.

  An Ceann Comhairle: Amendments Nos. 8, 9, 43 and 63 are related and will be discussed together by agreement.

  Mr. Quinn: I move amendment No. 8:

In page 6, between lines 14 and 15, to insert the following:

“ “grandfather clause” means the provisions of this Act (principally section 20) which enables a person to be registered as an architect based on training acquired by practical means;”.

In the interest of brevity I shall not repeat the arguments I have made elsewhere but this amendment is tabled at the request of a group of people who feel exposed and vulnerable because they may not have the necessary formal academic training certificates or qualifications but have a lifetime of experience which, in some cases, may be more valuable than theoretical academic work. They fear that if they are to be assessed further in the process of the administration of this legislation when it becomes law, that training would be deemed by some assessors to be training that took place in a classroom or under the umbrella of a course or institute.

The grandfather clause here explicitly proposes to mean “as an architect based on training acquired by practical means”. This group exists, is earning its living and will not be replicated so this amendment does not leave a door open for a new generation of people to come in by the same means because registration will cover those people.

I ask the Minister of State to reconsider this seriously. It is a definition clause that applies later. I have been through the Bill with my legal advisers and believe this clause will provide considerable comfort for people who do not know whether they will be able to come through the process of registration. They have fears for their livelihood that nobody else shares.

To refuse this would verge on being unconstitutional, because a group might find its lifetime’s experience and livelihood affected, through no fault of its own but because of a technical adjudi[1482] cation by somebody more academically orientated. It is deliberately phrased as a grandfather clause because it will tidy itself up, so to speak. That may not be an elegant phrase but the Minister of State knows what I am trying to say. I urge the Minister of State to consider this.

  Mr. O’Dowd: This is an important issue. The Bill concerns qualification and people who are deemed to be architects and practising as such. I have received representations from the Group of Independent Architects in Ireland, GIAI, which, with the Architects and Surveyors Institute, ASI, the Incorporated Association of Architects and Surveyors, IAAS, and the Irish Architects Society, IAS, has contributed to a document entitled A Framework for Registration for the Architectural Profession in Ireland, the “framework document”:

That document indicated that in any new regime, or in the event of the regulation of the profession, a grandfather approach would be taken to persons who were practicing as architects, without having formally qualified as such. That document also outlined the method of assessment to be applied to persons falling within the grandfather category which would enable them to register as an architect, based on training acquired by practical means whilst also acknowledging their established right to practice, without formal qualifications.

However, at variance with the approach proposed in the Framework Document the RIAI (the proposed designated Registration Body under the Building Control Bill 2005) are determined to impose a technical assessment based on Recognition of Prior Learning (RPL). The Competition Authority’s Report states that, the RIAI will face a clear potential conflict of interest between representing the interest of its members on the one hand and regulating in the public interest on the other.

I have tabled amendment No. 9 in an effort to resolve this “potential conflict”:

RPL requires a candidate to demonstrate an achievement of learning outcomes, and is not based on experience per se, therefore it is entirely inappropriate, and against the spirit of the Framework Document that such an approach should be used to assess those people who fall within the grandfather clause as described above... The GIAI have serious reservations with regard to this assessment system being used for the purpose of assessing ‘Grandfathers’ under Technical Assessment. This grandfather group is de-facto a mature group, currently in practice, the majority of whom run their own practice with employees, and the assessment process should reflect this group’s status as a finite grandfather group.

In addition, the GIAI submit that the application of this assessment system is entirely inappropriate on the grounds that it is neither [1483] equitable nor consistent with the assessment procedures adopted by the Department of Environment when previously assessing those persons who are now on what is known as “the Minister’s List” and which category of person is referred to in Section 12(2)(d) of the Bill.

This is a serious issue for this group. While I accept that the aim of the legislation is to ensure there are no cowboys in this field and that no one sticks the title architect, planner or whatever outside his or her door as has happened. People often come to me for advice as to whom they should approach on planning and related matters. I tell them to ensure that the qualification or name written on the door is recognised professionally. The GIAI properly represents people who have the expertise, skill and knowledge. They have the qualifications and I believe their concerns are reasonable. I will press this amendment.

  Mr. B. O’Keeffe: The effect of these amendments would be to label the registration procedure under sections 19 and 20 as the “grandfather clause”. The procedure is set out clearly in those sections and there is no reason to add to it with this amendment giving it a formal title. The procedure for architects applying for registration on the basis of training acquired by practical means is set down in section 20. It will be the function of the technical assessment board to provide for the assessment of such applicants. The RIAI will not set the standards. The board appointed by the Minister will set them.

Amendment No. 63 would require the technical assessment board, in assessing whether a person has the competencies specified in article 46 of the 2005 directive, to have due regard to the skills acquired through practical means and, where applicable, through formal training. This is already provided for in section 20(7). The amendment does not add to the section but might only cause confusion.

  Mr. Quinn: The attitude of the Minister and the Department is unnecessarily rigid in this case. It will not mess up the legislation but will provide comfort for citizens who have been earning their livelihoods in the State and paying their taxes. I have heard no convincing argument from the Government as to why this belt and braces cannot be included. None of us knows what the nature of a technical assessment might be in terms of the attitude people will have to certificates.

I support the Bill. However, we are trying to acknowledge that some people have acquired skills by virtue of their experience and practice and not through formal training. By definition such people will not be here in the next gener[1484] ation because we have provided for a good education system in the area of building construction, architecture, surveying and so forth. This is an attempt to lift standards in the Republic, while at the same time recognising citizens who, perhaps through no fault of theirs, were unable for economic and social reasons to get the type of education they would have wished to get. These people have asked Deputy O’Dowd and I to provide that comfort for them.

Including this reference does not undermine the integrity of the Bill or its application. As we upgrade and improve our standards, we should not allow a group of people who have worked honestly all their lives to find themselves and their identities threatened.

  Mr. O’Dowd: Notwithstanding what the Minister said, this group of people clearly believes they are not being helped by this Bill. As they told me in the letter, the document entitled A Framework for Registration for the Architectural Profession in Ireland states in section 6.5 that the RIAI will propose an assessment system which will provide for the acknowledgement of an established right to practise for those without formal qualifications using uniform, fair and open procedures. Their strong view is that while the thrust of the term “grandfather clause” is widely known, it is important the specific meaning of the term is spelt out in the Bill. It is not spelt out, so I intend to press the amendment.

  Mr. B. O’Keeffe: We are anxious to be helpful on this matter. Section 20 deals with people with practical experience, but that does not presume or assume that an academic qualification is necessary. I propose to accept amendment No. 8 but I have problems with amendment No. 9. Further legal advice is required on that amendment. It could be considered in the Seanad, if that is acceptable.

  Mr. Quinn: That is very generous.

Amendment agreed to.

  Mr. O’Dowd: I move amendment No. 9:

In page 6, between lines 14 and 15, to insert the following:

“ “grandfather clause” means the provisions of this Act (principally as described in sections 12, and 20) which enable a person to be registered as an architect, based on training acquired by practical means and acknowledging their established right to practice, without formal qualifications, prior to the enactment of this Act;”.

Amendment put.

[1485] The Dáil divided: Tá, 36; Níl, 54.

    Bruton, Richard.

    Burton, Joan.

    Connaughton, Paul.

    Connolly, Paudge.

    Costello, Joe.

    Deasy, John.

    English, Damien.

    Gilmore, Eamon.

    Gormley, John.

    Healy, Seamus.

    Higgins, Michael D.

    Howlin, Brendan.

    Kehoe, Paul.

    McCormack, Pádraic.

    McGrath, Finian.

    McGrath, Paul.

    McManus, Liz.

    Mitchell, Gay.

    Mitchell, Olivia.

    Moynihan-Cronin, Breeda.

    Murphy, Catherine.

    Murphy, Gerard.

    Naughten, Denis.

    Neville, Dan.

    O’Dowd, Fergus.

    O’Shea, Brian.

    O’Sullivan, Jan.

    Penrose, Willie.

    Quinn, Ruairí.

    Ryan, Eamon.

    Sargent, Trevor.

    Stagg, Emmet.

    Stanton, David.

    Timmins, Billy.

    Upton, Mary.

    Wall, Jack.

Níl

    Ahern, Dermot.

    Ahern, Noel.

    Andrews, Barry.

    Brady, Johnny.

    Brady, Martin.

    Brennan, Seamus.

    Browne, John.

    Carey, Pat.

    Collins, Michael.

    Cooper-Flynn, Beverley.

    Cregan, John.

    Curran, John.

    de Valera, Síle.

    Dempsey, Noel.

    Dennehy, John.

    Devins, Jimmy.

    Ellis, John.

    Finneran, Michael.

    Fitzpatrick, Dermot.

    Fleming, Seán.

    Gallagher, Pat The Cope.

    Grealish, Noel.

    Harney, Mary.

    Haughey, Seán.

    Hoctor, Máire.

    Jacob, Joe.

    Keaveney, Cecilia.

    Kelleher, Billy.

    Kelly, Peter.

    Killeen, Tony.

    Kirk, Seamus.

    Kitt, Tom.

    Lenihan, Brian.

    Lenihan, Conor.

    Moloney, John.

    Moynihan, Michael.

    Mulcahy, Michael.

    Nolan, M. J.

    Ó Fearghaíl, Seán.

    O’Connor, Charlie.

    O’Donnell, Liz.

    O’Flynn, Noel.

    O’Keeffe, Batt.

    O’Malley, Tim.

    Parlon, Tom.

    Power, Peter.

    Power, Seán.

    Sexton, Mae.

    Smith, Brendan.

    Wallace, Mary.

    Walsh, Joe.

    Wilkinson, Ollie.

    Woods, Michael.

    Wright, G. V.

Tellers: Tá, Deputies Kehoe and Neville; Níl, Deputies Kitt and Kelleher.

Amendment declared lost.

[1486]   Mr. B. O’Keeffe: I move amendment No. 10:

In page 6, line 21, to delete “an EEA State” and substitute “a Member State of the EEA”.

This drafting amendment seeks to clarify the existing definition of a European Economic Area, EEA, state.

Amendment agreed to.

Debate Adjourned.