Ethical gauntlet thrown down in pursuit of construction code
In a lecture last June, Professor John Uff QC suggested that there was scope for a single ethical code for that loose grouping of professionals from many disciplines who work in construction law and who are bound at present by a variety of different professional standards (AJ 10.7.03). The Society of Construction Law (SCL) picked up this gauntlet and set up an ethics group to consider the matter. On 2 December, Judge Thornton QC of the Technology and Construction Court gave a paper to the SCL in which he set out some of the key considerations that the drafters of such a code would need to take into account.
The judge proposed that such a code should be applied more widely than only to those who deal with legal matters. Having stated that construction in the UK is economically wasteful and excessively costly, he proposed that the administration of contracts (traditionally a core part of architectural practice) was one of four stages of the construction process which should be investigated to see why this is so. There is a perception, the judge said, that problems arise because of failings by the contracting parties and those representing them, which are attributable at least in part to ethical failings, including dishonesty, unfairness and a lack of transparency.
In support of the idea of an ethical code, the judge said that if employers, contractors and construction professionals adopted appropriate ethical standards, the possible benefits would be to reduce delays, unnecessary expense and disputed claims. He also referred to the possibility of reducing the occurrence of poor design and shoddy workmanship.
How would a code governing such unethical conduct be promulgated? The suggestion is that such a code should, in the first instance, be a standalone document to be used as a guide by the industry. There are then various routes by which it might become more widely accepted. The code might simply come to be recognised as exemplifying current standards. Parts of it might be incorporated into the codes of conduct of relevant professional bodies, such as the RIBA. It might also be written into contracts as a requirement. The judge gave the example of the 1944 Fair Wages Resolution which, although never enacted, was written into the JCT contracts so that contractors warranted that they would comply with its requirements.
What should the code require of those in construction? The judge drew a neat parallel with the guidance from the Nolan Committee, which examined the standards of conduct of those holding public office and identified 'Seven Principles of Public Life'.
Having effected a few well-considered substitutions into Nolan's list, the seven ethical principles for the construction industry proposed by the judge are: fair reward, integrity, objectivity, accountability, fairness, honesty and reliability.
The consideration of objectivity raised a number of knotty issues, and is a good example of what a code might do for the industry. A designer may be tempted to be less than objective if asked to point out potential problems and dangers within a scheme to a tendering contractor. It may be difficult to be objective about certifying what sum is due when there have been costs consequences as a result of working through the certifier's inadequate design. Objectivity can disappear over the horizon if a dispute looms. As the judge put it, 'people who are at risk of being blamed will hold back information because they do not want to hand others a rod with which they can then be beaten'.An ethical code might help by giving guidance as to when a 'conflict review' would be appropriate, how to carry it out, who should be told about the problem, and what other positive action might be apt.
These thorny issues are out there, and there appears to be an increasing perception that they need to be addressed in ways that are compatible with wider public interests. In those circumstances, the guidance a new ethical code would give should be welcomed.
The proposals are still in the melting pot, so it is a good time to consider the issues and join the debate 1Information about the SCL's ethics group, including a list of its members, can be found at www. scl. org. uk