In 2012, the Council of the Inns of Court (“COIC”) disclosed through a report of Desmond Browne QC that several hundred disciplinary findings of guilt against barristers had been adjudicated upon by non-qualified disciplinary judges. Scores of decision-makers had sat beyond their 3-year tenure. Others had been appointed by the Bar Standards Board (“BSB”), the regulatory prosecutor. Some had extra-judicial connections with the BSB, such as an undeclared income from the BSB. Some sat when too junior, or purported to chair panels when only an honorary silk. The system was in a state of discredited paralysis, despite its re-vamp in 2006 after the seminal 2005 decision in Re P (a barrister).
Mr M’s case came before the Divisional Court as a claim for judicial review against the Visitors to the Inns of Court. On the subject of expired tenure, the Court held that the relevant disciplinary rules do not require a disciplinary judge to be subject to a strict tenure, but that even if they do, such judges are “de facto” judges.
The leading judgment was delivered by Moses LJ. He accepted expressly or by necessary implication, that:
(i) disciplinary panels have to be “established by law” within the meaning of Article 6 of the European Convention on Human Rights and Fundamental Freedoms (“ECHR”) and Article 47 of the EU Charter of Fundamental Rights (“the EU Charter”);
(ii) The Convention jurisprudence shows that the meaning of “law” in Article 6 of the ECHR as including a corpus of domestic regulations, is wide enough to encompass the COIC Tribunal Appointments Body’s terms of reference (“the TAB TOR”) which expressly provided for the time-limited judicial tenure of COIC disciplinary judges;
(iii) The time-limited tenure rules were a “regulatory arrangement” within s. 21 of the Legal Services Act 2007, which upon its enactment, had approved the Bar’s scheme of regulation, including the time-limited nature of disciplinary panel appointments:
“It is on section 21 that Mr Hendy QC places the greatest emphasis. This section defines “regulatory arrangements of a body”. They include:
“(e) its disciplinary arrangements in relation to regulated persons (including its discipline rules)”, and under (i) “any of its other rules or regulations (however they may be described), and any other arrangements which apply to or in relation to regulated persons, other than those made for the purposes of any function the body has to represent or promote the interests of persons regulated by it……(whether or not those arrangements, rules or regulations are contained in, or made under, an enactment)”.
There was controversy as to whether this definition embraced COIC’s constitution, its creation of the Tribunals Appointments Body in 2006 and the Memorandum of Understanding with the Bar Standards Board. Mr Nicholls QC, on behalf of the intervening party, the Bar Standards Board, rightly pointed out that section 21 referred to the regulatory arrangements of the Bar Council and not those of COIC or any body of its creation. But, in my view, that is no answer. The width of the definition provides ample justification for including within the regulatory arrangements all those provisions designed to separate the prosecution process from the rules for independent adjudication. The General Council of the Bar has necessarily sought to keep those processes separate and through the medium of COIC provide an independent system of adjudication. The arrangements for adjudication, and the methods whereby the disciplinary tribunals and Visitors’ hearings are constituted, seem to me to be part of the regulatory arrangements of the approved body, the Bar Council. That the Bar Council has ensured that COIC and not the BSB is responsible for the appointment of independent clerks and members of the panel does not mean that all the arrangements relevant to appointment are not part of its regulatory arrangements…..”
However Moses LJ then stated:
“ …Mr Hendy’s success in bringing within the scope of section 21 [of the Legal Services Act 2007] regulatory arrangements the COIC arrangements for appointment gains him nothing unless they make provision for the appointment to disciplinary tribunals and Visitors’ hearings from the pool created by the Tribunals Appointments Body. In that crucial respect the legislative intervention has nothing to say..., ”
This critical view decided the judicial review in favour of the BSB. Stripped to its essentials it was saying: “Parliament approved the Bar’s disciplinary scheme including its appointments procedures and thus approved the time-limited tenure of disciplinary judges. However, Parliament did not say that the Bar had to comply with its own appointments procedures.”
But surely a disciplinary system containing a pool of quality assessed, assured, and eligible disciplinary panellists was a system designed to be complied with and adhered to? Otherwise what is the point of it? The COIC arrangements for appointment for fixed tenures did make provision for the appointment from the COIC “pool.” Once it was accepted (as it was) that the TAB TOR were a section 21 “regulatory arrangement,” it surely necessarily followed that the COIC/TAB rules about selection from a pool of quality assured and eligible disciplinary judges all subject to time-limited membership of that pool were a statutory requirement and thus prescriptive and/or that this was a necessary reading of the “regulatory arrangements,” when taken together as the working machinery for judicial selection.
There was surely no warrant in law or on the evidence for not regarding the TAB TOR as prescriptive, or for assuming the existence (or importance) of a reserve power vested in the President of COIC to appoint to sit on specific cases, non-quality-assured panel members from outside of the COIC pool (including time-expired ones), when there was no evidence adduced by the BSB or COIC (which had lost all of its records):
(i) that such a reserve power had ever been exercised by the President of COIC or,
(ii) that the COIC pool did not in any event contain a sufficient breadth of specialisation and experience, or,
(iii) that the COIC system administered by one person working alone, was organised or responsive enough to appoint judges to specific cases based on professional background, specialism or experience, rather than on the basis of mere availability, or by random selection.
Like many other barristers tried from 2006 to 2012, Mr M was not tried, nor was his appeal heard, by an Article 6-compliant tribunal, as these were not “…established by law.” The Bar designed a system in 2006 for selecting disciplinary judges. Their tenure was time-limited. The statutory status of this regime meant that time-limitation was in place to be observed. Otherwise, this system had little purpose and was in fact, little more than a sham. As Moses LJ expressed it in argument: “Rules is Rules.”
The Moses argument artificially and needlessly superimposed a stage of reasoning onto a conclusion that sufficed to decide the first part of the claim. His conclusion that:
“In the result, the sole requirements for appointment to any particular Disciplinary Tribunal are those contained in the Disciplinary Tribunals Regulations 2009 themselves and in the Hearings before Visitors Rules 2005. The legal authority to sit is derived from those regulations and rules and not from COIC’s arrangements constituting the pool of those who have been approved by COIC”
was contradicted by the anterior finding that the TAB TOR provisions about time-expiry were a “regulatory arrangement” within the meaning in s. 21 of the Act. This is supported by Schedule 4, para 2 of the 2007 Act:
(1) The regulatory arrangements of a listed body [ie the Bar Council], as they have effect immediately before paragraph 1 comes into force, are to be treated as having been approved by the [LSB] for the purposes of this Act at the time that paragraph comes into force.
Once it was accepted by the Court that the TAB TOR were, “regulatory arrangements,” it is impossible to understand how they were not treated by him as prescriptive of the constitution of the panels.
Effect on solicitors
The Divisional Court’s approach to s. 21 of the LSA 2007 impacts on the other professions governed by the 2007 Act in a manner that, as yet, no-one appears to have contemplated. The SDT has a codified system for appointments to the SDT. It is set out in the, “Solicitors Disciplinary Tribunal Appointment Protocol (2012).” The tenure is for a fixed 5 years. The Master of the Rolls formally appoints those selected against fixed criteria. This is done after an open competition. There is no suggestion that he could, if he wished (and as Moses LJ contemplates of the COIC President for the Bar’s scheme) select ad hoc a disciplinary judge for a single case from outside of the pool of members, such that a time-expired SDT judge could lawfully sit. It is surely the case that the Protocol, like the TAB TOR is, as Moses LJ accepted, a “regulatory arrangement” and, as such, defines the legality of the right of any disciplinary judge to exercise the powers of the SDT over a prosecuted solicitor.
De facto judge
The Divisional Court held that even if it was wrong about time expiry, the 3 impugned decision-makers had de facto authority to sit. English common law created an ancient doctrine that serves to ratify the legality of public decisions made by those who, albeit unknown at the time, did not have legal authority to make the decision. This is the doctrine of de facto judge. The acts of a judge genuinely reputed to have an authority that has expired can be saved by this doctrine.
The question arose whether Art. 47 of the EU Charter of Fundamental Rights, which requires a tribunal to be “previously established by law” renders unlawful the common law doctrine of de facto judge. Moses LJ accepted the submission that Art. 47 was binding and of direct effect in this case. But he held that the word “previously” adds nothing to the otherwise identical test in Art. 6 of the ECHR of “…established by law.”
It was no less a jurist than Sedley LJ who in Sumakan Ltd v Commonwealth Secretariat (No 2)  EWCA Civ 1148 at  suggested that the de facto doctrine may not survive Art. 47 due to the use of the word “….previously” in, “…previously established by law.” That was at a time at which it was not thought that Art 47 was of direct effect. But now it is.
Surely the word “previously” does add something to Art. 47. The prefix means that for a tribunal to be lawful it must exist in the eyes of the law as a tribunal before it sits in judgment on the citizen. A time-expired judge has no remaining authority over a citizen save as is ostensibly restored to him ex post facto by the common law doctrine. Thus the doctrine works retrospectively not prospectively. A citizen ex hypothesi sitting in court observing a time-expired judge and knowing he is time-expired would not think that he was established by law before he sat on the case. If he were told that after the event the authority of that judge had been rectified by some kind of deeming doctrine, he would not think that the authority of that judge was “previously” established, that is, before he sat in judgment. Moses LJ’s view that: “established” in Art.6 of the ECHR and “previously established” in Art 47 mean the same thing, is simply untenable as a matter of ordinary language. The guidance in the EU Charter’s interpretative document (the Explanations), relied on heavily by Moses LJ, that Art. 47 “corresponds to” Art 6 of the ECHR, is not in terms that it, “precisely” corresponds to it. Plainly it does not. The two provisions largely correspond, save for the adverb “previously. ” It would have been very simple for the framers of the EU Charter to cut and paste Article 6 of the ECHR into the EU Charter of 2000, but they did not do that.
The EU Charter signals a declaration that is at the core of the rule of law itself, namely that ad hoc courts and judges adjudicating on criminal charges, civil rights and the rights protected by EU legislation are unlawful and that, for their decisions to be lawful, they must be the product of an anterior matrix of appropriate rules, howsoever those rules may be created. This being so, the old doctrine of de facto judge, which, however ornately expressed, is based on the quaint pretence that something that is plainly irregular was regular all along, surely cannot survive the incorporation of Art. 47 into our law.
Indeed within the concept of “de facto judge” there is what Sedley LJ termed a “prolepsis” – by this he may have meant that a de facto judge is not a judge at all and the attribution of a past status that did not exist at the time is pure fiction. But Sedley LJ may not have been so subtle in his choice of language in M’s case. For “prolepsis” read ”fiction.” Indeed, the decision of Moses LJ is based on a two-fold contrivance:
(a) that a carefully framed selection process need not be followed, although those operating it thought they were bound by it;
(b) that decision-makers with no remaining mandate to sit in judgment on their peers had a deemed mandate after all.
As Moses LJ accepted, the English Bar’s disciplinary system should be a gold standard for all others. Does the Common Law world admire us all the more for our skilful circumvention of administrative chaos, than it would if we simply came clean and did not seek to uphold convictions that were imposed by those with no remaining lawful mandate to do so ? If lasting reputations are made by substance and not by appearances, then the answer must be, no.
In other respects too, the judgment sought to keep up appearances. Mr M was tried by a decision-maker who failed to reveal to the parties that he had been and was in receipt of an external examiner’s income from the prosecutor, the BSB. It is trite law that no judicial or quasi-judicial decision-maker can sit on a case in which his financial interests may be seen to lie in appeasing one of the parties before him. This is a principle so rigorously applied that it once served to disqualify no less a judge than the Lord Chancellor himself: Dimes v The Proprietors of the Grand Junction Canal, (1852) 10 E.R. 301 HL. Yet not only could Moses LJ not see that the undisclosed income served to disqualify someone sitting in judgment on a fellow barrister, but he regarded the argument (despite a full citation of authority) as, “totally without merit.” There is surely no justification for treating barristers as some inferior species of citizen to whom the usual rules of the law of bias do not apply. The law is still as it was over 160 years ago in Dimes: no judge may sit in a case in which he has a pecuniary interest in the maintenance of his extra-judicial relationship with one of the parties.
At an American Bar Association seminar on International Arbitration in London in October 2013, (the day after Moses LJ’s judgment was handed down), I asked a distinguished panel including a serving English High Court judge, how they would react to the discovery after the event that one of a panel of three Arbitrators was in the undisclosed pay and employ of one of the parties to the Arbitration. The panel were unanimous in the view that the doctrine of apparent bias would be engaged, one of the US panellists, a senior lawyer from Georgia, even remarking that such facts disclosed not merely apparent bias, but bribery ! They were astonished to hear that the (anonymised) facts were not only based on the truth, but that the case was one heard in England.
It is also clear from the IBA’s Guidelines on Conflicts of Interest in International Arbitration, that in International Arbitration there would be no tolerance of any non-disclosure of an income derived from one of the parties. Here, English barristers are expected to accept an antediluvian notion of judicial impartiality that would be rejected: (a) in most, if not all other, mature judicial systems, (b) in all probability, in England itself, if the bias challenge were made by any other category of litigant.
Future challenges to disciplinary convictions
All is not lost for those barristers who have been affected by the flawed COIC appointments process of 2006-2012. Despite M v BSB being intended to have been a lead test case, the Divisional Court failed to make any finding whatsoever (whether as to permission to move for JR, or otherwise) in respect of the contention that the BSB’s purported membership of the Tribunals Appointments Body (through a Miss A) was ultra vires the Constitution of COIC, which before February 2009 did not confer and after that date, expressly withheld voting and/or decision-making powers from the BSB, such that the TAB appointments (or annual reviews) made and affecting Mr M were void and of no effect.
This argument has been mounted twice, once in the Visitors’ appeal of Russell and once before Moses LJ and Parker J. On both occasions, the Court rather curiously, completely ignored the submission: see judgment of Moses LJ at para . Moses LJ was told in terms that Williams J had ignored the argument in Russell. But his Lordship did the same.
The BSB had no constitutional basis whatsoever for being part of the appointments process of COIC from 2006 to 2012. Indeed, the post-2012 and post-Browne Report arrangements, excluding the BSB from that process, effectively acknowledge this fact. This is not a bias or ”tainting” challenge. It is far more fundamental than that. It is the equivalent of saying that none of those selected and appointed to the COIC disciplinary pool by TAB (or annually reviewed by it) to sit on disciplinary hearings were properly appointed at all for any period of time, not merely that their tenure expired after an ab initio valid appointment. Moses LJ addressed his mind only to whether the role of the BSB on TAB served to taint by apparent bias the outcome of TAB’s deliberations. He failed to consider whether and if so with what consequences, that role vitiated the very vires of TAB.
This being so, it may fall to another barrister to take up the challenge of holding the disciplinary system to account in the way that, for far less, professional disciplinary systems hold individual professionals to account.
Marc Beaumont was Counsel in the test case of Regina (M and others) v Bar Standards Board and in the 2 cases of Russell v Bar Standards Board. Marc specialises in the defence of barristers and solicitors in disciplinary prosecutions.