Should a profession seek legal protection for its specialist fields of work? As a long recession begins to take its toll, many feel that protecting an area of professional expertise against cowboy operators is essential.
Protection of title is, in my view, of fairly limited value. If you call yourself an architect when you are not ARB-registered you can be taken to court. In 2009, the ARB successfully brought seven prosecutions for misuse of title and the courts imposed an average fine of £2,000. This is not exactly death by stoning.
Admittedly, the ARB works hard to resolve cases without taking them to court and there are many hundreds of instances of abuse of title every year that are settled without recourse to the law – the threat alone is sufficient. But keeping this machinery working requires an income of £3m per year – twice the income of the LI – that basically has to be paid for in fees from architects. Is it worth it? Especially considering that the ARB has no powers to prevent people offering their services as architectural technologists, building designers or some other title. For landscape architects then, protection of title could mean creating an expensive mechanism to achieve relatively little.
Frustrated by the relative impotence of their protection of title, some UK architects are now calling for ‘protection of function’. By this they mean that the law would require the presence of a registered architect on certain kinds of project, e.g. the design of any building larger than a certain size or above a certain value. This might sounds as though it would have greater benefit, but in reality it is far from straightforward. And if everyone starts protecting their functions, what would landscape architects seek to protect and how would we secure that protection in the first place?
We would have to do single-hand combat with each of the groups whose work overlaps with the work of the landscape architect – architects, engineers, planners, garden designers, ecologists, environmental managers and so on. All of them would pitch in to try to prevent landscape architects taking a monopoly of work in areas where they feel they have a legitimate claim. Assuming we won that war, we would have to persuade the government to set aside parliamentary time to legislate for protection. The likelihood of any UK government doing this – not least one committed to free markets and reducing red tape – is incredibly small.
The entire concept of protection of function is difficult for a common law system such as ours to embrace, because the principle we live by is that everything is permitted unless it is specifically forbidden, and what is forbidden must be clearly defined and limited. This is a quite different starting point from the Napoleonic systems of law that prevail in many other EU countries, where there is an assumption that professions require official sanction to come into existence and their scope is defined from the outset. To the limited extent that protection of function exists in the UK it is largely reserved for professions, such as midwifery, which are a matter of life and death.
In the UK, unless you are registered with the Nursing and Midwifery Council (NMC) it is an offence to describe yourself as a midwife and you are forbidden to ‘practice as a midwife’. But the law does prevent anyone from advising expectant mothers, and women are not compelled to have a midwife present at their birth if they do not want one – you can have a (unregulated) doula instead.
The strongest argument against protection of function is this: if we imagine a fantasy world in which landscape architecture – and only landscape architecture – achieves protection of function, then there may be distinct advantages. The reality, however, is that if protection of function comes, it will come for all the built environment professions at once, and its arrival will simply trigger a massive turf war of all against all. Not only will this be unedifying for all the professions involved and discredit them in the eyes of the public, it will be an enormous distraction from more productive work and it will lead to a result that is probably unsatisfactory for everyone.
My own conclusion is that legal protection for landscape architecture would be of very questionable value, of little practical application, and that the chances of achieving even these limited gains are vanishingly small. With all it uncertainties and insecurities, I feel that the future for landscape architecture remains with the other professions which are regulated neither in name nor in title – engineers, surveyors and planners.