Many occupations like to see themselves as professionals. However, a regulated profession has a governing or regulatory body sanctioned by law to govern or regulate it.

Governments regulate many commercial activities to ensure that the public interest is served. A common approach to professional regulation is self-regulation, whereby an occupational group like doctors, accountants or civil engineers agree with the government to regulate its members’ activities formally.

Recent incidents of alleged criminal negligence by civil engineers and accountants have drawn attention to the limitations of self-regulation in protecting consumers’ interests.

The Criminal Court recently found two civil engineers involved in a construction project that led to the death of Miriam Pace guilty of involuntary homicide. However, it listed several mitigating factors to justify a non-custodial sentence. As a result, the two retained their warrant to continue practising their profession.

The Chamber of Architects and Civil Engineers (Kamra tal-Periti), the body that regulates the profession and an official consultant to the state on matters related to the industry, issued a press communication to explain why it could not take more determined action to ensure that the risks of professional negligence by its members do not lead to more fatal incidents in future.

The sentence in the Pace case is now being appealed, which puts in doubt whether the chamber can even continue to investigate the matter.

The Kamra may be following the letter of the law in the way it is acting. But the question remains as to how effective the state and professional self-regulation is in protecting the public interest.

Self-regulation should be regarded as an onerous privilege. Professions are accorded this privilege because the government trusts professionals to put aside self-interest in favour of promoting the public interest.

The Kamra argued that it has been “campaigning on the need for reforms in the construction industry for several years in line with its legal and moral obligations to advise the state on how best to safeguard the public interest”.  That is indeed true and good. But it is clear that, like the state, it does not have enough power to protect the public from professional criminal negligence.

A thorough reform is needed to ensure that professional bodies and the state are held accountable for their failure to protect ordinary people from such negligence. This reform should be based on a clear understanding of what the rock base of professional regulation should be.

The primary objective of a regulatory body of professionals should be to protect the public from incompetent or unethical practitioners. An equally important goal is to ensure the effective provision and access to professional services, a priority higher than protecting the interests of the body’s profession or its own members.

This is even more crucial in the context of the often weak political will of the government to enact and enforce regulations for public protection. The public does not have the capacity to evaluate the competence of the professional person before it may be too late to do so. There is also often an imbalance between the service provider’s power and that of those who receive the services.

The consequences of the actions of incompetent or unethical professionals are often serious, as seen in the tragic case of Miriam Pace. Professional regulators should have investigatory and disciplinary powers that some members may find intrusive. But these powers are needed, and should be exercised consistently, to protect the public’s interests.

Sound co-regulation between the state and professional bodies is one way to overcome the limitations of self-regulation enshrined in some of the legislation aimed to regulate professional conduct.

Kamra tal-Periti reply:

Unfortunately, a number of points raised seem to be based on a misinterpretation of the press release issued by the Kamra tal-Periti and an incomplete understanding of the law.

Firstly, the parallels drawn between the accounting profession and the periti profession are incorrect. Unlike the Accountancy Board, the Council of the Kamra tal-Periti is directly elected by members of the profession with no political interference or involvement whatsoever. Nevertheless, even our profession is not purely self-regulated given that the Code of Conduct is published by Legal Notice and thus requires political fiat.

While in the recently-enacted Periti Act the Kamra is explicitly entrusted with the role of regulating the profession, in the current law which is soon to be phased out its role is primarily that of a disciplinary body with limited powers to regulate.

The Kamra spent 14 years campaigning for an updated law and our lengthy struggle was finally concluded on March 24, 2021. There were inevitable compromises we had to reach along the way, including giving up the direct appointment of members on the Periti Professional Conduct Board, which the Kamra insisted on creating, and reluctantly accepting a weaker and, in our view, ineffective method for appointing its members, namely by drawing lots. The alternative was accepting that the Minister appoints the members of this board, which would have led to Malta being the only country in Europe in which a politician has such authority.

Your editorial states that the Kamra “does not have enough power”. This is correct. However, when the new Periti Act is brought into force, this legislative shortcoming should be rectified. 

Nevertheless, since the beginning of the year, the Council has held 114 conduct sessions despite all its work being done without any funding and entirely dependent on voluntary work.

It is also pertinent to draw your readers’ attention that August 2 will mark the second anniversary since the Letter of Commitment, signed by a Government Minister, was entered into with the Kamra. It is a letter in which the Government committed itself to implement reforms within a specified timeframe, many of which have hitherto failed to materialise.

You also state that “[a] thorough reform is needed to ensure that professional bodies and the state are held accountable for their failure to protect ordinary people from such negligence”. We could not agree more. 

The new Periti Act was one such reform. The implementation of the Kamra’s building and construction regulation framework will hopefully be another. However, Government entities can and should do more by reporting deficient documentation to the Kamra, rather than issuing permits and clearances and then clutching at straws while answering lawyers’ questions in Criminal Court after innocent victims lose their lives or their homes. 

To date, the various iterations of the current Building and Construction Authority, including the former Building Regulation Office and Building and Construction Agency, are yet to file a single complaint against a perit to the Kamra. It is pertinent to also point out that it is the BCA’s legal remit and obligation to review documentation prior to issuing clearances. The Kamra is not in a position to also fulfil the BCA’s role.

It is the current model of co-regulation, not self-regulation, that has failed.