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Building Safety Act for Scottish architects working on projects in England and Wales

08/05/2025 · 5 minute read

Although many aspects of the Building Safety Act 2022 (BSA) and related regulatory changes don’t apply to Scottish projects, architects based in Scotland who work on projects south of the border will still find themselves subject to some new duties, even on projects that aren’t higher-risk buildings, albeit the regime is less imposing. 

In this article, we discuss cross-border work and the considerations for Scottish architects.

Principal designer role in England and Wales

The principal designer role used to only relate to the health and safety of the construction process regarding design and build under the Construction Design and Management Regulations 2015 (CDM), which may already be familiar to Scottish firms. However, under the BSA, principal designers now have added duties — it has become a dual role. 

On all projects — no matter the size — there now must be a BSA-specific principal designer, although an express appointment is not required. Architectural firms may be subject to this duty even without express appointment and thus may be concerned about how the change affects their risk and their professional indemnity (PI) insurance coverage. Also, even if an architect is not a principal designer, they remain a “duty-holder” as defined under the BSA.

These roles now carry a strict legal duty to ensure that the finished building’s design complies with building regulations. Failure to comply carries the possibility of criminal fines, although how these would actually materialise remains unclear. However, PI policies typically don’t cover criminal or punitive fines. Insureds would be well-advised to seek policy wording that includes an extension allowing insurers to pay investigation costs and assist in criminal proceedings brought under any building regulations, if they feel it will mitigate a potential future civil claim. These are often called “criminal prosecution costs” or “formal investigation costs,” but the exact coverage can differ from policy to policy.

For those exposed to a high level of project risk, it is worth considering a management liability — directors and officers (D&O) — policy, which may cover these regulatory actions, subject to policy terms and conditions. 

Notably, appointments under a traditional CDM principal designer document now carry the responsibilities of the new dual role under the BSA as standard. Importantly, under the BSA, lead design consultants on a project — if there is no express mention of the role in the contract — will be designated the principal designer, even on small house projects, although these typically carry fewer process-driven activities.

Another emerging issue is that design and build (D&B) contractors are at times requesting the principal designer role be completed by Scottish practices, despite the involvement of a larger lead design consultant firm based south of the border. This appears to be occurring as some firms expressly decide they do not want to take on the responsibility. We recommend exercising caution in such situations — that role should be taken on by the lead practice or the firm with more experience undertaking work in that regulatory framework.

Marsh has also seen language about the BSA creep into general full services contracts, which Scottish firms, in particular, may not have much experience with. You will want to consult with your counsel about potential adjustments, including to any proposed warranties.

We also find language in contracts regarding the extended limitations enforced by the BSA, which firms should similarly be aware of and consider.  

Contracting considerations for higher-risk building projects

Scottish architects working on high-risk projects in England and Wales should consider:

  • Are your staff competent and experienced in the regime with regards to the gateways, the golden thread and other duties involved? Errors in these areas can cause delays, which can lead to PI claims.
  • Work on higher-risk building projects, even at the concept design stage, is not just creative, but now compliant and regulatory due to the BSA.
  • When agreeing on budgets, timing, and fees, time should be built in allowing for possible issues related to passing the gateways for design file signoff. Clients will unlikely cater for this in the tender.

Contracting considerations for all projects:

Scottish architects working on any project in England and Wales should consider:

  • While the regulatory process for buildings that are not higher risk remains similar to what it was before the BSA, the new enforcement presents higher legal duties for all project consultants — they all are now duty holders, even if not the principal designer.
  • Designers now need to evidence and record more information on the design file — ensure you have a robust document-recording process.
  • If an architect has charged fees for design work, and then later is asked to agree to the express principal designer appointment letter/deed, then of course consideration should be given towards amending/adding to the original fee proposal.

Finally, in any PI submission proposal form, we recommend that architects be clear with their insurance broker on what any principal designer-related questions are actually asking for, whether in regard to activity split or otherwise. In certain scenarios, if an insurer raises an issue with you undertaking a principal designer role, it can be helpful to prove compliance and experience with both the role and the BSA, such as through training or outsourcing to specialists.

If you have questions regarding the BSA or other topics raised here, please contact your Marsh representative.

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Andrew Broome

Andrew Broome

Technical Specialist, Marsh Specialty

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