Institute and Faculty of Actuaries facing a Judicial Review challenge to its disciplinary system

The IFoA seems to be keeping its members in the dark about this, but on Tuesday 26 July 2022 at the Royal Courts of Justice in London, Mr Justice Choudhury, despite strenuous attempts by the IFoA (with a QC and 3 other lawyers in attendance) to head this off, granted permission for me to take the IFoA to court in a judicial review which challenges whether the IFoA's disciplinary system is sufficiently independent to meet the requirements of a fair hearing as required under Article 6 of the European Convention on Human Rights.

The existence of this legal challenge affects not only anyone currently under investigation by the IFoA under their disciplinary scheme, but also arguably any student or other member facing allegations or being disciplined under the IFoA's shadowy, far from transparent Assessment Regulations.

The case was followed by Tribunal Tweets, the Free Speech Union and other organisations interested in #freespeech and protecting professionals against the increasing encroachment by their professional bodies into members' private lives, in this case the IFoA attempting to police personal political tweets criticising religion.

As it has with other free speech cases (including the Maya Forstater, Holbrook and Allison Bailey ones) Tribunal Tweets live tweeted it, see https://web.archive.org/web/2022072...readerapp.com/thread/1551859648814252033.html.

IFoA members: watch carefully whether the IFoA is transparent about this. If you are affected by
disciplinary matters (including assessment regulation discipline), then ask the IFoA to clarify its position, and whether it will be amending its guidance in the light of the Holbrook, Forstater, Bailey and Harry Miller cases (all of which found that the right to free speech is very important and had been unlawfully interfered with), and whether it will be amending its disciplinary system in the light of my legal challenge, to make sure it complies fully with the law with regard to articles 6 and 10 ECHR.

See also https://www.reddit.com/r/Actuary_ne...ry_narrow_but_a_victory_nevertheless_against/

 

Interesting topic.

With regards to Article 6 which you referred to: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." (https://www.echr.coe.int/documents/convention_eng.pdf)

And the challenge/ allegation here is that the IFoA disciplinary committee does not meet some [unspecified] criteria to be considered 'independent and impartial' (noting an analogy used in court in your tweets link, "...Comparable to CPS bringing a case and having the person tried by a body not independent of CPS. ")

By independence, do I presume correctly that in the case of IFoA this refers to independence of the Regulatory Board's Disciplinary Committee from the IFoA executive? Is this effectively a kind of corporate governance failing being alleged? (e.g. conflict of interest, lack of outside perspective etc.) I'm thinking of this from an ERM perspective.

I guess the real question I have is: if you were in charge (of the IFoA, or the FRC/ ARGA, or in govt itself), what would you do differently in structuring the composition and governance of the disciplinary committee and its processes such that it would then meet criteria for the disciplinary tribunals to be considered 'independent and impartial'? Perhaps a distinct body such as what the MPTS is
vis à vis the GMC? (And yet the MPTS Statutory Committee is still a committee of the GMC...)

 

Good questions. The judgment of Mr Justice Choudhury should be published soon and perhaps the permission bundle and associated authorities bundle with it.
If not in any case I will be investigating the possibility of publishing at the least the papers from my side of the case. I think that is permissible, and that is what Maya Forstater, Jon Holbrook and Allison Bailey did in their cases. (In those situations, the other side were invited to publish their documents but declined to do so. One can only speculate why they declined to make their arguments public. Perhaps they were embarrassed by some of the arguments they were making. If so that was prescient: they lost).

Re "By independence, do I presume correctly that in the case of IFoA this refers to independence of the Regulatory Board's Disciplinary Committee from the IFoA executive? Is this effectively a kind of corporate governance failing being alleged? (e.g. conflict of interest, lack of outside perspective etc.) I'm thinking of this from an ERM perspective.":

Briefly, it is not the Disciplinary Committee in isolation, but the fact that the Regulatory Appointments Committee (which appoints everyone involved in the whole of the disciplinary system) is not sufficiently independent of the IFoA. The IFoA's Council appoints 4 out of the 6 members of the RAC. Appointments are for a relatively short term (3 years) and are renewable (at the IFoA's option with regard to the 4 members on RAC appointed by Council). Appointments by the RAC (e.g. to Disciplinary Panels, but also to the Disciplinary Committee, and the Regulatory Board_ are also of short term and renewable at the RAC's option.

There are 9 reasons in all why the IFoA's disciplinary system is either not properly independent, or does not give the appearance of being independent. (The system must not only be independent, but be seen to be independent. If it looks dependent on the IFoA, then that does not inspire confidence that it will act in an independent way, and hence it is likely to fail the requirements of article 6.)

You ask, quite rightly, how the IFoA could do things differently, in a way that would not leave it open to the challenge (now agreed by Mr Justice Choudhury) that it is arguable that it does not meet the requirements of Article 6.

One way would be to follow how barristers are regulated:
From paragraph 49 of my statement of Facts and Grounds in the Judicial Review application:

"As Lord Reed noted, a short term of office is not ‘necessarily objectionable’, when other
factors are considered. For example, at the bar, panel members are appointed to three year
renewable terms.[ref 43] But, the appointment process is entirely independent of the prosecuting body (the Bar Standards Board). Panel members are appointed to serve on the Bar Tribunal & Adjudication Service (BTAS) by the Tribunals Appointments Body
(TAB) of the Council of the Inns of Court. The TAB is chaired by a Judge or practising barrister and is made up of a small number of QC, barrister and lay members. [ref 44] The BSB has no input into or over this process. This means that the TAB, unlike the IFoA’s RAC (point (i) above), is independent of the prosecuting body."

 

Thanks for explaining that. I didn’t know that about barristers’ regulation. From the information you have provided it does look like the RAC doesn’t have the same degree of independence as the TAB in the case of barristers. The IFoA would do well to look into- if not outright adopt - best practices from other professions in this matter. I suppose a judicial review would force the matter now anyway.

I hope at some point in the future to be able to read the full 9 reasons why the notion of independence is not satisfied, once the relevant papers are allowed to be published.

 

Thanks. I agree, although at the moment, unless and until the IFoA notifies me otherwise, I have to assume that they will continue fighting this. But you are correct that once permission has been given for a judicial review (JR), it seems a defendant can offer to remedy any defects in their provisions in which case the JR can be stayed by mutual agreement.