Let’s keep regulators and Tribunals to their correct remit

Over recent years we have seen the growth of statutory tribunals with panels comprised of a legally qualified chairperson and selected experts to determine a variety of a specialised issues. It is not clear whether this is born from a desire to relieve mainstream courts of workload, or to speed dispute resolution in specialised cases, or, from a concern that legally qualified judges may lack the skill and expertise to grasp the complexity of specialised issues, or for some other reason. Whatever may have been the rationale for creation these Tribunals are here to stay and disputes within their respective fields will be resolved there rather than in traditional courts.

We have observed that, more and more, these Tribunals have perceived themselves as able to exercise their decision-making powers at large, and, in accordance with their own assumptions, prejudices and pre-conceived notions of what is, in their view, right, or perhaps, right at the time.

This attitude supplements the growing self-perception of regulators from who such appeals are made. That attitude is that it is for those regulators to make rules rather than find and interpret facts against the background of a remit set by statute.

Often there may be temptation to fill in perceived gaps in statutory drafting left by the use of general terms “fair and reasonable”, “fit and proper person” and indeed “integrity” – to take a few examples.

The problem recently came to light in a case concerning the Solicitors Disciplinary Tribunal. Following a night out two lawyers fell into a brief, private encounter described as “sexual”.

The encounter had absolutely nothing to do with the professional competence, or, conduct within the profession of either party. The Tribunal found that there was no abuse of seniority, nor, that the encounter was anything other than consensual. It is difficult to understand why the matter did not stop there. Instead, the Tribunal took a pejorative view of at best one of those concerned and decided that the person was guilty of serious professional misconduct by showing a lack of “integrity” (which was not defined in the relevant regulations) and conduct which contravened the basic principles under which solicitors are required to behave. That person had their reputation traduced, were professionally dishonoured, were substantially fined, and, whether by choice or compulsion lost the source of their livelihood, at least temporarily.

The High Court, with admirable speed, had no difficulty in allowing an appeal and setting aside all the findings. Conduct, it said, was to be judged within parameters of behaviour presented by statute and not the current individual and collective views of regulators or Tribunal members. There was simply no evidential basis to draw the damaging conclusion made.

Although quite wrong (the SDT is not appealing further) it is an inevitable consequence of widely drawn boundaries for professional and regulatory standards, legal decision makers will be tempted to fill gaps by reference to their subjective opinions unconstrained by the limits. Albeit broad limits of the statutory framework.

It is not their business to judge the private basis and personal conduct of registrants where there is no impact on the conduct of their professional practices. Regulators and Tribunals considering their decision should resist the temptation to decide gateway or enforcement proceedings by reference to such opinions rather than seeing if they can judge that whatever is at stake, by reference to their statutory remit, the subjective assessment of the decision makers (no matter how widely experienced).

In December 2020 the Health Service Journal reported that the Chief Executive of an NHS Trust was to step down following an allegation by a whistleblower. The person had served the Trust for two years and there are no suggestions that her behaviour in tenure had been other than exemplary. However, that person had been, in a former life, Chief Executive of a major public body which had endeavoured to protect and recover public funds which were said to have been misappropriated. After a considerable time the claims were withdrawn and the accused exonerated. The Chief Executive of that body had, at all times, been supported by a team of financial and legal advisors who believed that serious wrongdoing had occurred and were apparently supported by very senior lawyers. As it transpired, they were all wrong.

The whistleblower invited the CQC to accede to a suggestion that the Chief Executive was, by reason of their past history in the other body, not a fit and proper person to be a director of an NHS Trust. Astonishingly, the CQC appear to have taken the matter seriously. It was not for CQC to make judgement on that issue. It was and is a matter for the appointing Trust to consider that it is satisfied as to an applicant’s fitness and one would have thought the matter should have rested there with a short, sharp response. It is inconceivable in this case that the Trust did not know of its Chief Executive’s former position. It is very difficult to see how the Trust could have not been satisfied that the applicant satisfied the fit and proper person test. Yet for some reason, the CQC did not act with the required robust response. Now the Chief Executive has decided to leave office and the Trust, and, for the tome being the NHS have lost a talented and experienced executive.

When faced with such decisions registrants and their lawyers should be bold.  Consistent with professional propriety advocates should not hesitate to guide decision makers when their clients perceive that those decision makers have overstepped the mark of their statutory remit or will be overstepping the mark by an investigation.

The statute (whether by Act of Parliament of Regulation) should be the starting point of every decision and every strong submission.

It is better to make the submission as early as possible rather than rely on an expensive appeal to extinguish a flawed of perverse judgement or to indulge those with subjective grudges to visit reprisals on those with whose conduct they choose to disagree.

The public expects fastidious investigation of allegations of wrongdoing. However, the public also expects that baseless allegations should be identified and rejected as such. Anything else may lead to a flight of talent which public services and private corporations can ill afford.

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