By Marc Beaumont, barrister, FCIArb.
The RICS continuing professional development (“CPD”) regime requires surveyors to undertake 20 hours of CPD per annum. It appears that many surveyors are falling foul of this requirement. Infractions by first time offenders are met with cautions and fines. However, repeat offenders are referred to the disciplinary tribunal with a “presumption of expulsion” – ie: the RICS equivalent of being struck off.
Hearings are conducted by 2 person disciplinary tribunals. In this article I suggest that 2-person tribunals are inquorate and so not lawfully constituted. This means that every RICS disciplinary decision taken by a 2- person panel – and there may be scores of them not only limited to CPD cases - is, on the face of it void.
The relevant provisions in RICS’s various constitutive documents are as follows, (with references to “Conduct Panel” or “Disciplinary Panel” emboldened):
The Royal Charter and Bye Laws (“ the Charter”)
- The Charter provides:
“B5.4.8 The powers referred to in B5.4 shall be exercised by the Conduct Panel, the Appeal Panel, the Head of Regulation or a Nominated Person in such circumstances and to such extent as the Regulatory Board may authorise in Rules. “
- The Conduct Panel is defined as:
“a panel of Members and non-members appointed from the Conduct Committee to hear regulatory cases in accordance with Rules made by the Regulatory Board”
- The “powers” are set out as follows:
B5.4.1 RICS shall have the power to:
(a) monitor compliance with the requirements of these Bye-Laws, or any Regulations or Rules made under them; and
(b) investigate complaints, allegations or suspicions of failure to comply with these Bye-Laws and any Regulations or Rules made under them.
B5.4.2 RICS shall have the power to impose one or more of the disciplinary penalties specified in B5.4.3 if, after due enquiry, a Member or Firm is found to have committed one or more of B5.2.2(a)-(d) or B5.3.2(a)- (c) respectively.
B5.4.3 The disciplinary penalties referred to in B5.4.2 are:
(a) to caution the Member or Firm against repeating the conduct or action which is found to have constituted the contravention;
(b) to reprimand the Member or Firm;
(c) to require the Member or Firm to give one or more undertakings as to future conduct;
(d) to fine the Member or Firm in accordance with policy objectives set by the Regulatory Board from time to time;
(e) to impose conditions on the Member’s continued membership of RICS;
(f) to impose conditions on a Firm’s registration;
(g) to make an order requiring a Member or Firm to take specified action, and stating the penalty imposed if the Member or Firm fails to comply with that action;
(h) to expel the Member from membership of RICS;
(i) to remove a Firm’s registration. “
So only a properly constituted, “Conduct Panel” can expel a member.
Constitution of Conduct and Appeal Committee Rules 01 April 2009 (version 3 with effect from 24 February 2016).
“In these Rules ‘Disciplinary Panel’ is the name given to the Conduct Panel as defined in Bye-Law 1”
- The role of the Disciplinary Panel shall be to hear disciplinary cases and exercise the disciplinary powers of RICS as set out in the Bye-Laws and Rules in accordance with the powers and procedures set out in the Disciplinary, Registration and Appeal Panel Rules.
- A Disciplinary Panel shall be appointed from the lists kept for the purposes of Rule 9.a and Rule 12 and shall comprise a chair and two other panellists, at least one of whom shall be a non-Member of RICS. ”
- So a “Conduct Panel” or “Disciplinary Panel” has to be a panel of 3 people.
Disciplinary, Registration and Appeal Panel Rules 01 April 2009 (“DRAPR”) (version 6 with effect from 11 April 2016)
- These rules illustrate some of the consequences of a 2-person panel seeking to exercise the powers of a 3-person panel:
- “Clause 1
“h. Disciplinary Panel” as defined in Bye-Law B1, is the name given to the members and non-members from the Conduct & Appeals Committee….
…..q. “Panel” means Disciplinary Panel, Registration Panel or Appeal Panel as constituted under the Constitution of Conduct and Appeal Committee Rules”
- So only a properly “constituted” panel can exercise the powers set out in the DRAPR.
- The DRAPR continue:
“Part II initial stages
- Receipt of information or allegation
On receipt of an allegation or information which suggests a Relevant Person may be liable for disciplinary action the Head of Regulation may:
make any further enquiries which he considers necessary
refer the matter to the Disciplinary Panel for consideration under Rule 14 (interim measures)
in cases that fall within Section 12 of part C of the Sanctions Policy [CPD cautions and fines] approved by the Regulatory Board, impose upon the Relevant Person a Fixed Penalty (in which circumstances Rules 5-9 shall not apply)
where the Head of Regulation is satisfied that a Relevant Person has failed to meet the requirements in respect of Rule 6 of the Rules of Conduct for Members [ “ Members shall comply with RICS’ requirements in respect of continuing professional development”] and that a referral to a Disciplinary Panel is appropriate under the Sanctions Policy approved by the Regulatory Board refer the matter to a Disciplinary Panel for consideration in accordance with Rule 43A of these Rules and paragraph 23 of the Sanctions Policy [ see below ] (in which circumstances Rules 5-9 shall not apply)……..
…….43A. Provisions relating to cases referred to a Disciplinary Panel under Rules 4(d), 9(c):
the Relevant Person and RICS will submit documents on which they intend to rely and written representations to the Disciplinary Panel by the date notified to them
the Disciplinary Panel will issue a written decision with reasons to the parties
there will be no oral hearing of the case unless an application has been made under Rule 23(f).
- So it is clear that a referral by the prosecuting arm of RICS to the disciplinary or ‘judicial’ arm of RICS, which then appoints a 2-person panel, is itself invalid because such a referral is not to a “disciplinary panel” and no decision of a properly constituted, “disciplinary panel” ensues.
- The intention that there be a 3-person panel is further, plainly evident from rule 33:
Where a Panel is required to decide an issue:
- the matter shall be put to a vote
- no panel member shall be allowed to abstain
- the matter shall be decided by a simple majority.”
- Furthermore, only a 3-person panel can lawfully punish a member:
The penalties available to the Disciplinary Panel are:
to caution the Relevant Person against repeating the conduct or action which has resulted in the liability to disciplinary action
to reprimand the Relevant Personto require the Relevant Person to give one or more undertakings as to future conduct
to fine the Member or Firm up to a maximum figure specified in the Supplement to the Sanctions Policy – Fines, Costs and Administration Fees approved by the Regulatory Board
to impose conditions on the Relevant Person’s continued membership/ registration with RICS f. to expel Members from RICS or remove a Firm’s registration for regulation
to make an order requiring a Member or Firm to take a specified action, and stating the penalty imposed if the Member or Firm fails to comply with that action.”
Sanctions Policy – Guidance to RICS Disciplinary, Registration and Appeal Panel Rules 01 January 2008 Version 6 with effect from 01 August 2014
The RICS policy about penalties for CPD breaches is as follows:
“ 23. Sanctions in respect of Rule 6 of the Rules of Conduct for Members 2007 (CPD) 23.1
The policy for CPD breaches is as follows:
- Breach – Fixed Penalty (caution)
- Second breach within 10 years of receipt of a caution – Fixed Penalties (caution and fine)
- Third breach within 10 years of receipt of a caution – referral to Disciplinary Panel with presumption of expulsion. “
- Again, only a properly constituted “disciplinary panel” can expel.
It might be argued that the Constitution of Conduct and Appeal Committee Rules (01 April 2009, version 3 with effect from 24 February 2016) contain a saving provision:
“Validity of proceedings
- The validity of any proceedings of any of the Committees or Panels or a decision of a Fixed Penalty Reviewer shall not be affected by any vacancy among any of the members of the Committees or, by any defect, in the election or appointment of a member, panellist or Fixed Penalty Reviewer. “
But in the case of a 2-person panel, that is not a case of a vacancy arising among any of the members of the panel. The absence of a third member is not due to such a third person withdrawing for some reason after the case has began, as sometimes happens. Nor is this a case of a defective “appointment” of “a member” or “panellist”, as the 2 members who do sit are not appointed defectively and the third member who does not sit, is never appointed at all.
The human rights dimension
The 2-person panel is not a, “tribunal established by law” and so is not Article 6-compliant.
Section 6 of the Human Rights Act provides:
“Acts of public authorities.
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if—
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this section “public authority” includes—
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature,
but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.
(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.
(6) “An act” includes a failure to act but does not include a failure to—
(a) introduce in, or lay before, Parliament a proposal for legislation; or
(b) make any primary legislation or remedial order.”
Article 6(1) of the ECHR deals with fair trial rights:
Right to a fair trial
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. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
Article 6 of the ECHR applies to disciplinary proceedings (Ginikanwa v UK (1988) 55 DR 251), since the right to practise a profession is a civil right and a disciplinary tribunal may determine that right. Article 6 applies, for example, to the suspension of Architects: Guchez v Belgium (1984) 40 DR 100. Ergo surveyors.
It is an express requirement of Article 6 that a tribunal determining rights and civil obligations must be “established by law”: e.g., Gurov v. Moldova (2006) no. 36455/02, § 37-39, 11 July 2006 (C2/39). The European Court of Human Rights looks broadly in order to determine what is “law” for these purposes. Thus in Zeynalov v. Azerbaijan (2013) (Application no. 31848/07) (C3/68), it was held that:
“The “law”, within the meaning of Article 6 § 1 of the Convention, comprises not only legislation providing for the establishment and competence of judicial organs, but also any other provision of domestic law which, if breached, would render the participation of one or more judges in the examination of a case irregular (see, among other authorities, Lavents, cited above, § 114; Gorguiladzé v. Georgia, no. 4313/04, § 68, 20 October 2009; and Pandjikidzé and Others v. Georgia, no. 30323/02, § 104, 27 October 2009).”
This was emphasised in Volkov v Ukraine (2013) (Application no. 21722/11):
“151. The phrase “established by law” covers not only the legal basis for the very existence of a “tribunal” but also the composition of the bench in each case (see Buscarini v. San Marino (dec.), no. 31657/96, 4 May 2000, and Posokhov v. Russia, no. 63486/00, § 39, ECHR 2003-IV). The practice of tacit extension of judges’ terms of office for an indefinite period after the expiry of their statutory term of office until they were reappointed has been found to violate the principle of a “tribunal established by law (see Gurov v. Moldova, no. 36455/02, § 37-39, 11 July 2006).... “
Article 47 of the EU Charter
Article 47 of the EU Charter of Fundamental Rights is in identical terms to Art 6, but requires that a tribunal be “previously established by law”.
Article 14 ICCPR
Article 14.1 of the International Covenant on Civil and Political Rights (1976) provides in similar terms, but adds a test of “competence”:
“All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law………….[emphasis added].”
2-person panels under RICS’s current disciplinary regime are on the face of it completely unlawful. Decisions against Chartered surveyors and RICS-regulated firms taken by 2-person panels are void. All should be expunged. Applications to appeal out of time should be allowed. Of those who have been struck off, many of them will have had their careers destroyed, their livelihoods expunged and their reputations ruined forever. The consequential violation of their human rights by RICS is a matter of profound concern.
MARC BEAUMONT FCIArb.
Marc Beaumont is a senior barrister specialising in the defence of professionals such as Chartered Surveyors in disciplinary prosecutions.