The claimants were barristers who, in separate cases, had been found to have breached the Bar Standards Board's ("BSB") Code of Conduct by the BSB's Disciplinary Tribunal ("the Tribunal").The
The claimants were barristers who, in separate cases, had been found to have breached the Bar Standards Board's ("BSB") Code of Conduct by the BSB's Disciplinary Tribunal ("the Tribunal").
The Tribunal's findings had subsequently been at least partially upheld by the BSB's internal appellate body, the Visitors of the Inns of Court (whose members were described in the judgment as "the Visitors"). The claimants' judicial review applications raised several common points and so were heard together by the Administrative Court.
The central issue the Court had to consider was the constitution of both the Tribunals and the panels of Visitors who had heard the claimants' cases.
The Council of the Inns of Courts ("COIC") was established to appoint and populate Disciplinary Tribunals and panels of Visitors, independently of the BSB (and so creating a separation of executive and judicial powers). The COIC created a Tribunals Appointments Body to establish a pool of lay representatives, barristers, silks and clerks ("the COIC pool"), who would sit on panels of the Disciplinary Tribunal or of the Visitors. The COIC established its own Terms of Reference, which specified the criteria which members of the COIC pool would need to meet.
The Terms of Reference specified also that lay members of the COIC pool were to be appointed to the panel for 5 years (renewable once), and barrister members for 5 years (renewable once) or, alternatively, 3 years if they were already existing panel members.
It was this provision of COIC's Terms of Reference which the claimants claimed had been breached. The claimants argued that because the fixed terms of office of some of the members of each body had expired, the claimants had not been tried by panels established by law; as such, the Tribunal had no power to try them and the Visitors no power to uphold the findings.
It was not disputed that the tenure of some members of the COIC pool who had heard the Claimants' cases (or their subsequent appeals) had exceeded these limits.
The Disciplinary Tribunals Regulations 2009 (Annex K to the BSB's Code of Conduct, "the Regulations") stated that 3 or 5 member Disciplinary Tribunals were to be "nominated by the President" of the COIC. Similarly, the Hearings Before the Visitors Rules 2005 (Annex M to the Code of Conduct, "the 2005 Rules") required that the Lord Chief Justice "shall nominate the [Visitors] who are to hear the appeal".
The Court was required to decide whether it was necessary to be a member of the COIC pool in order to be appointed to sit on a Tribunal or as a Visitor. The Court noted that neither the Regulations nor the 2005 Rules made any reference to the COIC pool, nor did they confine the power of either the President or the Lord Chief Justice to selection from the COIC pool. Furthermore, the Court did not consider that there was any other legislative provision which required appointment to the Tribunal or the Visitors' Hearings to be made from the COIC's pool. Rather, the sole legal authority for appointment was derived from the Regulations and 2005 Rules.
It was decided, therefore, that neither a Tribunal member nor Visitor was required to be a member of the COIC pool to be an eligible panel member. Neither the Regulations nor the 2005 Rules stipulated a fixed period of office as a member of a Tribunal or as a Visitor, and so the fact that Tribunal members and Visitors had been members of the COIC pool for longer than the terms anticipated by the COIC's Terms of Reference did not breach any relevant (statutory) provision. The constitutions of the various disciplinary and appeal tribunals were not, therefore, unlawful.
The Court expressed "regret" about this, given that the various ancillary regulations and guidance gave the impression that the qualifications devised by the COIC for eligibility to the pool were "themselves the qualifications for appointments to disciplinary tribunals or Visitors' hearings". Yet, there was no statutory provision which underpinned this. The role of the Appointments Body was, in the Court's view, "only advisory" and had apparently developed in parallel with the Regulations and the 2005 Rules, but was not formally linked with or subservient to it.
The Court felt that it was "plain" that the panel members in these cases had been appointed because it was thought that they were still valid members of the COIC pool and, that they were not so, was an "avoidable mistake" but breached no rules or regulations. The Court stated that the COIC's functions in vetting eligible members were still of "great importance" and necessary to fulfil the requirements of Article 6 of the European Convention on Human Rights, so as to ensure panels were established by law and independent (Art 6.1). The Court stated that in not noticing that members of the COIC pool were no longer eligible to it, the COIC had "undermined the essential purpose of its creation", but in these cases there happened to be no breach of Article 6.1.
The Court also considered the BSB's argument that the doctrine of de facto authority served to avoid the consequences of a defective judicial appointment. The doctrine means that where a judge is appointed, and is acknowledged by the parties as having authority to hear and decide a case, even if it is later discovered that the judge in fact lacked such authority all along then they (and their decision) will not be treated as such. Rather, they may be treated as if they did have authority to act as judge, and their decision will not be invalidated by the fact that, for example, there was a material defect in their appointment.
The Court held that the doctrine would apply to the BSB's proceedings as these concerned the public administration of justice and because the Tribunal and the Visitors were acting in a judicial capacity; "the regulation of those who appear in courts and conduct litigation…lies at the very heart of the public administration of justice".
It remains to be seen whether future judgments will confirm that the de facto doctrine applies to other regulators, particularly those who regulate non-legal professionals. The Court in this case gave specific weight to the fact that the Tribunal and the Visitors made decisions affecting "those who appear in courts", as requiring the Tribunal and Visitors to act in a (quasi-) judicial capacity. Equally, however, it is well established that the disciplinary functions of other regulatory bodies engage Article 6 of ECHR and it would perhaps be surprising if these were said not to be matters relating to, and requiring the fair application of the administration of justice.
The applications for judicial review on grounds of panel eligibility were consequently refused.
The Tribunal's findings had subsequently been at least partially upheld by the BSB's internal appellate body, the Visitors of the Inns of Court (whose members were described in the judgment as "the Visitors"). The claimants' judicial review applications raised several common points and so were heard together by the Administrative Court.
The central issue the Court had to consider was the constitution of both the Tribunals and the panels of Visitors who had heard the claimants' cases.
The Council of the Inns of Courts ("COIC") was established to appoint and populate Disciplinary Tribunals and panels of Visitors, independently of the BSB (and so creating a separation of executive and judicial powers). The COIC created a Tribunals Appointments Body to establish a pool of lay representatives, barristers, silks and clerks ("the COIC pool"), who would sit on panels of the Disciplinary Tribunal or of the Visitors. The COIC established its own Terms of Reference, which specified the criteria which members of the COIC pool would need to meet.
The Terms of Reference specified also that lay members of the COIC pool were to be appointed to the panel for 5 years (renewable once), and barrister members for 5 years (renewable once) or, alternatively, 3 years if they were already existing panel members.
It was this provision of COIC's Terms of Reference which the claimants claimed had been breached. The claimants argued that because the fixed terms of office of some of the members of each body had expired, the claimants had not been tried by panels established by law; as such, the Tribunal had no power to try them and the Visitors no power to uphold the findings.
It was not disputed that the tenure of some members of the COIC pool who had heard the Claimants' cases (or their subsequent appeals) had exceeded these limits.
The Disciplinary Tribunals Regulations 2009 (Annex K to the BSB's Code of Conduct, "the Regulations") stated that 3 or 5 member Disciplinary Tribunals were to be "nominated by the President" of the COIC. Similarly, the Hearings Before the Visitors Rules 2005 (Annex M to the Code of Conduct, "the 2005 Rules") required that the Lord Chief Justice "shall nominate the [Visitors] who are to hear the appeal".
The Court was required to decide whether it was necessary to be a member of the COIC pool in order to be appointed to sit on a Tribunal or as a Visitor. The Court noted that neither the Regulations nor the 2005 Rules made any reference to the COIC pool, nor did they confine the power of either the President or the Lord Chief Justice to selection from the COIC pool. Furthermore, the Court did not consider that there was any other legislative provision which required appointment to the Tribunal or the Visitors' Hearings to be made from the COIC's pool. Rather, the sole legal authority for appointment was derived from the Regulations and 2005 Rules.
It was decided, therefore, that neither a Tribunal member nor Visitor was required to be a member of the COIC pool to be an eligible panel member. Neither the Regulations nor the 2005 Rules stipulated a fixed period of office as a member of a Tribunal or as a Visitor, and so the fact that Tribunal members and Visitors had been members of the COIC pool for longer than the terms anticipated by the COIC's Terms of Reference did not breach any relevant (statutory) provision. The constitutions of the various disciplinary and appeal tribunals were not, therefore, unlawful.
The Court expressed "regret" about this, given that the various ancillary regulations and guidance gave the impression that the qualifications devised by the COIC for eligibility to the pool were "themselves the qualifications for appointments to disciplinary tribunals or Visitors' hearings". Yet, there was no statutory provision which underpinned this. The role of the Appointments Body was, in the Court's view, "only advisory" and had apparently developed in parallel with the Regulations and the 2005 Rules, but was not formally linked with or subservient to it.
The Court felt that it was "plain" that the panel members in these cases had been appointed because it was thought that they were still valid members of the COIC pool and, that they were not so, was an "avoidable mistake" but breached no rules or regulations. The Court stated that the COIC's functions in vetting eligible members were still of "great importance" and necessary to fulfil the requirements of Article 6 of the European Convention on Human Rights, so as to ensure panels were established by law and independent (Art 6.1). The Court stated that in not noticing that members of the COIC pool were no longer eligible to it, the COIC had "undermined the essential purpose of its creation", but in these cases there happened to be no breach of Article 6.1.
The Court also considered the BSB's argument that the doctrine of de facto authority served to avoid the consequences of a defective judicial appointment. The doctrine means that where a judge is appointed, and is acknowledged by the parties as having authority to hear and decide a case, even if it is later discovered that the judge in fact lacked such authority all along then they (and their decision) will not be treated as such. Rather, they may be treated as if they did have authority to act as judge, and their decision will not be invalidated by the fact that, for example, there was a material defect in their appointment.
The Court held that the doctrine would apply to the BSB's proceedings as these concerned the public administration of justice and because the Tribunal and the Visitors were acting in a judicial capacity; "the regulation of those who appear in courts and conduct litigation…lies at the very heart of the public administration of justice".
It remains to be seen whether future judgments will confirm that the de facto doctrine applies to other regulators, particularly those who regulate non-legal professionals. The Court in this case gave specific weight to the fact that the Tribunal and the Visitors made decisions affecting "those who appear in courts", as requiring the Tribunal and Visitors to act in a (quasi-) judicial capacity. Equally, however, it is well established that the disciplinary functions of other regulatory bodies engage Article 6 of ECHR and it would perhaps be surprising if these were said not to be matters relating to, and requiring the fair application of the administration of justice.
The applications for judicial review on grounds of panel eligibility were consequently refused.