Legal action against a legislation not yet enforced

Chris Arch

Hi,

I am member of a professional institute who may be willing to start legal actions against the Building Control Regulations 2013. http://www.irishstatutebook.ie/pdf/2013/en.si.2013.0080.pdf

These regulations are in breach of European Law. The opinion of The Competition Authority is that the regulations are restricting competition without legitimate reason.

These regulations are due to be enforced on 01/03/2014. I am wondering if the start of legal actions today could stop or at least delay the enforcement of the regulations?

If someone has experience in this field, I would be glad if you could give me your opinion on the above.

Thanks in advance

Marcusm

Google judicial review and/or injunctive relief.

NoQuarter

Chris Arch wrote: »

Hi,

I am member of a professional institute who may be willing to start legal actions against the Building Control Regulations 2013. http://www.irishstatutebook.ie/pdf/2013/en.si.2013.0080.pdf

These regulations are in breach of European Law. The opinion of The Competition Authority is that the regulations are restricting competition without legitimate reason.

These regulations are due to be enforced on 01/03/2014. I am wondering if the start of legal actions today could stop or at least delay the enforcement of the regulations?

If someone has experience in this field, I would be glad if you could give me your opinion on the above.

Thanks in advance

OP,

Seriously? As a member of a professional institute, surely you would go seek professional advice rather than asking on the internet?!

Whatever institute you work in I hope I manage to avoid ever working there!

Chris Arch

NoQuarter wrote: »

OP,

Seriously? As a member of a professional institute, surely you would go seek professional advice rather than asking on the internet?!

Whatever institute you work in I hope I manage to avoid ever working there!

Hi... You should inform yourself before being so critical about something.!.

This is more complicated than that... The institute already received legal advices. However, you may know that legal advises are sometimes contradicting each others. The problem started with the Building Control Act 2007

The issue concerns breach of European law on the ground of free movement, freedom of establishment and on the ground of competition. In 2010 we have lodged a complaint to the European Commission regarding the breach of EU Law for free movement of professionals as per sections 21-22 of the Building Control Act 2007. However, there is a clash of opinion at EU level too. The European Commission refuses to acknowledge the breach while the European Ombudsman stated the the European Commission is wrong by refusing to acknowledge the breach of European Law.

Of course the Institute received legal advise, but now a decision must be taken. If we can stop the enforcement of the new legislation by starting a legal action in the Irish Courts now, maybe we should do so. So far the plan was to wait for an arbitration and a more friendly solution by involving the European Commission. We have recently lodged a complaint to the European Commission with regards to the anti-competitive nature of the Building Control Regulations 2013, but maybe we should take legal action straight-away...

234

Chris Arch wrote: »

Hi...

This is more complicated than that... The institute already received legal advices. However, you may know that legal advises are sometimes contradicting each others. The problem started with the Building Control Act 2007

The issue concerns breach of European law on the ground of free movement, freedom of establishment and on the ground of competition. In 2010 we have lodged a complaint to the European Commission regarding the breach of EU Law for free movement of professionals as per sections 21-22 of the Building Control Act 2007. However, there is a clash of opinion at EU level too. The European Commission refuses to acknowledge the breach while the European Ombudsman stated the the European Commission is wrong by refusing to acknowledge the breach of European Law.

Of course the Institute received legal advise, but now a decision must be taken. If we can stop the enforcement of the new legislation by starting a legal action in the Irish Courts now, maybe we should do so. So far the plan was to wait for an arbitration and a more friendly solution by involving the European Commission. We have recently lodged a complaint to the European Commission with regards to the anti-competitive nature of the Building Control Regulations 2013, but maybe we should take legal action straight-away...

You should consult a solicitor and possibly counsel on this. It's a tactical question and a question of risk.

Also, if your arguments are as poor as your spelling and grammar I can't see you ever getting anywhere.

Chris Arch

234 wrote: »

You should consult a solicitor and possibly counsel on this. It's a tactical question and a question of risk.

Also, if your arguments are as poor as your spelling and grammar I can't see you ever getting anywhere.

Well... Excuse my spelling & grammar, I did not think that it was important on this forum and I am used to have my official letters corrected. I will be more careful from now. But for you information, I have already been far in this issue...

I am not in charge to decide what shall be done by the institute. I am only a sub-committee member. The institute is international, and I am trying to assess if they are doing what is required to defend members in Ireland. The fact is that we are a minority in the ROI, so the financial risk may not be worthy. Solicitors are already involved...

Chris Arch

Marcusm wrote: »

Google judicial review and/or injunctive relief.

Thanks for this lead Marcusm...

Pro Hoc Vice

Chris Arch wrote: »

Hi,

I am member of a professional institute who may be willing to start legal actions against the Building Control Regulations 2013. http://www.irishstatutebook.ie/pdf/2013/en.si.2013.0080.pdf

These regulations are in breach of European Law. The opinion of The Competition Authority is that the regulations are restricting competition without legitimate reason.

These regulations are due to be enforced on 01/03/2014. I am wondering if the start of legal actions today could stop or at least delay the enforcement of the regulations?

If someone has experience in this field, I would be glad if you could give me your opinion on the above.

Thanks in advance

A number of years ago a Act was going to abolish early houses. The relevant professional body, got the best minds in relation to the area of law. An opinion was produced and the proposed amendment was dropped.

If the professional body in this case is unwilling to take the risk of Judicial Review, then for any member to do so will be very risky. Legal costs could amount to many tens of thousands.

vinnie13

NoQuarter wrote: »

OP,

Seriously? As a member of a professional institute, surely you would go seek professional advice rather than asking on the internet?!

Whatever institute you work in I hope I manage to avoid ever working there!

why did you ever bother posting if not going to help the op

Chris Arch

infosys wrote: »

A number of years ago a Act was going to abolish early houses. The relevant professional body, got the best minds in relation to the area of law. An opinion was produced and the proposed amendment was dropped.

If the professional body in this case is unwilling to take the risk of Judicial Review, then for any member to do so will be very risky. Legal costs could amount to many tens of thousands.

If the institute was moving towards a judicial review by the end of January... Would the enforcement of the regulations be delayed by the court?

Pro Hoc Vice

Chris Arch wrote: »

If the institute was moving towards a judicial review by the end of January... Would the enforcement of the regulations be delayed by the court?

Only if they sought and got a interim injunction, no one can answer would they get it or even if they would apply. I know nothing about the SI so have no idea if the Body or any member would even have locus.

Chris Arch

infosys wrote: »

Only if they sought and got a interim injunction, no one can answer would they get it or even if they would apply. I know nothing about the SI so have no idea if the Body or any member would even have locus.

Thanks infosys, I think that you just answered my question. As the institute represents only 300 practitioners in the state out of approx. 4,000, I don't think that they will obtain a delay for the enforcement of the regulations as it would create too many problems for the large majority of practitioners.

If I can ask a last question... Would you know how long it could take for the court to decide if the SI is anti-competitive as per EU law and how long it would take to have the SI amended if the Court decides that it is anti-competitive as per European law?

I guess that the government will surely have the right to appeal the court decision and this would create delays...

Pro Hoc Vice

Chris Arch wrote: »

Thanks infosys, I think that you just answered my question. As the institute represents only 300 practitioners in the state out of approx. 4,000, I don't think that they will obtain a delay for the enforcement of the regulations as it would create too many problems for the large majority of practitioners.

If I can ask a last question... Would you know how long it could take for the court to decide if the SI is anti-competitive as per EU law and how long it would take to have the SI amended if the Court decides that it is anti-competitive as per European law?

I guess that the government will surely have the right to appeal the court decision and this would create delays...

How long is a piece of string. But but rough guide HC about a year, SC 4 years and Europe another year. Or the HC could send it straight to Europe, way too many variables.

Chris Arch

infosys wrote: »

How long is a piece of string. But but rough guide HC about a year, SC 4 years and Europe another year. Or the HC could send it straight to Europe, way too many variables.

Thanks infosys...

It appears that a judicial review will not solve our problem as fast as it was first thought... I don't think that members of the institute will be offered any compensations for all the financial loss that we will endure by being deprived to practice during the legal procedure...

I think that the Irish government is betting on members to register with another institute, as this will be much faster, approx. 7 to 8 months...

NoQuarter

vinnie13 wrote: »

why did you ever bother posting if not going to help the op

Nobody can help the OP in his question except a professional. It's outrageous to decide whether to take action on the advice of someone on the internet. I actually think I was helpful because I had hoped the OP would realise how crazy his request for advice was on foot of my response.

Chris Arch

NoQuarter wrote: »

Nobody can help the OP in his question except a professional. It's outrageous to decide whether to take action on the advice of someone on the internet. I actually think I was helpful because I had hoped the OP would realise how crazy his request for advice was on foot of my response.

You are misreading NoQuarter... Or you are not reading all the information. It is not for me to take the decision, I am trying to analyse what are the options as to assess if the deciders within the institute are defending the Irish members correctly. I do not have access to all the legal information from the London office but I have already read 3 legal opinions on some of these matters, including an opinion from the AG.

Unfortunately, it appears that the institute will not make a challenge in front of the Irish Courts, otherwise I think that they would already have done so, unless they thought that the issue would be solved through diplomatic channels.

NoQuarter

Chris Arch wrote: »

You are misreading NoQuarter... Or you are not reading all the information.

I have read the whole thread, what is it you are looking for from strangers on the internet who may or may not have any legal qualifications??

Chris Arch

NoQuarter wrote: »

I have read the whole thread

It does not sound like it !

NoQuarter wrote: »

what is it you are looking for from strangers on the internet who may or may not have any legal qualifications??

another opinion from someone qualified or not... As already stated, I already have paid legal opinions. I was just trying to make sense of what was going on. Thanks to some of the contributors, I am now in a better position to assess the situation.

Thank you guys... If I can be of any assistance with planning or building regs issues, you can PM...

nuac

Has this query anything to do with the limited protection given to the profession of architects under the BCA 2007.

As the father of a duly qualified architect I was amazed that up to 2007 that anybody could claim to be an architect. Al sorts of technicians, diplomas etc floating around,

Difficulties arose when lending institutions required full professional certification.

Also in cases of a building contact dispute an expert witness who was not properly qualified was wide open to credential challenge


As to what the OP can do

1. Lobby the Minister dealing with this in the hope of getting some changes.

2. afaik you cannot seek JR of legislation until it is passed by An Oireachtas.
Such a JR is really senior hurling. If your association are not taking this action you would be unwise to go solo

Pro Hoc Vice

nuac wrote: »

Has this query anything to do with the limited protection given to the profession of architects under the BCA 2007.

As the father of a duly qualified architect I was amazed that up to 2007 that anybody could claim to be an architect. Al sorts of technicians, diplomas etc floating around,

Difficulties arose when lending institutions required full professional certification.

Also in cases of a building contact dispute an expert witness who was not properly qualified was wide open to credential challenge


As to what the OP can do

1. Lobby the Minister dealing with this in the hope of getting some changes.

2. afaik you cannot seek JR of legislation until it is passed by An Oireachtas.
Such a JR is really senior hurling. If your association are not taking this action you would be unwise to go solo

The SI has been passed it does not come into operation untill the 1st March 2014. That is a whole other issue if a SI can do what this SI purports todo.

Chris Arch

nuac wrote: »

Has this query anything to do with the limited protection given to the profession of architects under the BCA 2007.

As the father of a duly qualified architect I was amazed that up to 2007 that anybody could claim to be an architect. Al sorts of technicians, diplomas etc floating around,

Difficulties arose when lending institutions required full professional certification.

Also in cases of a building contact dispute an expert witness who was not properly qualified was wide open to credential challenge


As to what the OP can do

1. Lobby the Minister dealing with this in the hope of getting some changes.

2. afaik you cannot seek JR of legislation until it is passed by An Oireachtas.
Such a JR is really senior hurling. If your association are not taking this action you would be unwise to go solo

The problem is that many qualified professionals are now out of the equation. What was first regarded as a legislation to remove non qualified professionals from the competition has now become a tool to create a monopoly for a group of 3 professionals represented by 3 institutes.

The Competition Authority has clearly explained that there was no legitimate reason for such restrictions. Many other groups of qualified and registered professionals are able to provide consumers with a quality service.

With regards to the technicians, many of them are more capable and more qualified than architects to supervise the construction and certify compliance with the building regulations. Plus many of them have masters in this speciality of construction work.

In the name of public protection, it is in fact the interests of 3 institutes which are protected, while the others are eliminated.

We have lobbied the minister, but he is not in charge. It is the 3 institutes who make the rules and draft the laws. The minister will not take the side of a minority, even if the discrimination is evident, it does not make sense politically.

For us the question is to know if Irish law is reliable to defend a group of qualified, experienced and registered professionals which is disenfranchised by a new legislation without legitimate reason.

The problem also resides in fighting a government which is playing dirty. Our institute was repeatedly told that it had nothing to fear from the new building control system. It has contributed free of charge to the draft of the building regulations as well as to the draft of the health & Safety regulations during the last decades.... But at the end, it was stabbed in the back. This is the rules of politics I presume... Is it also the rule of Law?