taking the moral high ground ...

Since it dropped unexpectedly (for quite a few of us at least) in October last year, the Principal Designer role defined by the Building Safety Act has been met by a mixture of confusion, fear and indifference by architects. There has been a lot to take in from this 2023 amendment to the Act and there remains a lot of discussion and uncertainty around what it will mean in practice.

At our own practice (nimtim architects) we’ve spent quite a bit if time looking at the implications for us and our work. We’ve also spoken with other practices and are part of a working group within the London Practice Forum. Again there are differences of opinion with many taking the view that it isn’t fundamentally any different from our obligations before. Others are feeling overwhelmed by the additional liabilities it places upon us by default. Reading through some of the guidance around it, there’s some pretty significant stuff in there from having to assess safety/ compliance of other consultants and their work, possibly having to liaise with contractors on site to ensure compliance and as well as many other expectations culminating in the possibility of individual criminal prosecution - these are from the RIBA’s Building Safety Act Initial Guide:

the proposed obligations to (i) take reasonable steps to ensure that a Designer's design work is "managed and monitored" so that "if built, the building work to which the design relates would comply with relevant Building Regulations" and

(i) "co-operate with contractors" to ensure that, if built, the design to which the works relate would comply with Building Regulations; and (i) generally, to "ensure that, if built, the building work to which the design relates" would comply with such Regulations,

Understand the scope of relevant insurances and the limitation of relevant warranties to monitor the effect on building safety risks, and orchestrate proportionate responses from the design team if building safety risks change during the design phase.

…those taking on the Principal Designer role will need to consider how they can take reasonable steps to ensure other Designers comply with their obligations under the Building Regulations and what this might mean in practice…

‘the BSA has also created a new section which will - in certain instances - extend the criminal liability of a company or other body corporate to its directors, officers or managers, so they could be personally liable for the offence.’

Criminal fines - whether imposed on a corporate or an individual director or officer - are not insurable. It will also ultimately be key for practitioners to ensure they have good practices and procedures in place to - as far as is possible - avoid breaches that may give rise to a criminal liability risk, particularly as offences may be punishable by imprisonment.

We're of the view that this IS a fundamental shift in our role and in the way we need to think about designing buildings. We’ve already found it informing decision making through the design process in our work. Rather than tending towards deferring issues of compliance to Building Control Officers or other consultants, we are more aware of having to make judgement calls around building safety ourselves. 

At the heart of it is a requirement/ obligation for the Principal Designer to take personal responsibility (and liability) for a building’s compliance with regulations and for its safety for the first 15 years of its life. That’s quite a scary prospect but ultimately if architects are to be the gatekeepers of a project’s compliance, that gives us quite a significant amount of liability but also power and influence - something many of us have been bemoaning the loss of in recent years. 

A few years ago I wrote about the Grenfell Inquiry (as it was unfolding) and the loss of ethics and moral judgement that the Inquiry exposed in that project (but that was familiar to us in many other projects). I ended with a rallying call for architects to once again provide ethical leadership within every project.

We may not necessarily like how the BSA Principal Designer role is described and much of the focus so far has naturally been on competence, procedure and liability. Underlying it though is the definition of a new role that ‘ensures’ the design for any building will be safe for future users.  For me this goes beyond simplistic issues of compliance and places a moral and ethical responsibility on the projects’ Principal Designer’ - (most likely the architect). That is something I think we should be talking about more and embracing as an opportunity. It might require us to take on new specialisms and skills but ultimately it will be about making decisions that will affect a building’s safety and that is a moral/ ethical judgement. 

Professionalism and ethics sit at the heart of Architects’ code of conduct and we are therefore better placed than anyone to take on this new role. It should of course come with an appropriate adjustment in fees and the ability to apply judgements and decisions at every stage of a project (both of which I’d like to see our professional bodies focusing on in terms of message). It should be viewed as an opportunity for the profession and everyone that is part of it to grasp.