The ICAEW Disciplinary Committee has a minimum of 14 members, of whom at least half must be lay members. Members are appointed for a term of three years which may be renewed once, with a further option for extension for one additional term. The requirements of the constitution of the committee are set out in Schedule 2 to the disciplinary bye-laws. In addition, the committee has Terms of Reference and the power to make its own regulations.
The primary function of the Disciplinary Committee is to consider all formal complaints referred to it in accordance with the disciplinary bye-laws. Members of the committee are allocated to panels to consider complaints about an individual member or member firm. Panels are formed of three committee members, two of whom must be ‘lay’ and one an ICAEW member. At present, the chair of the panel can be a lay member, who is appointed after serving a term as a panel member. If the chair is a lay member then legal advice is given to the panel by a legal assessor (solicitor or barrister experienced in regulatory matters). The role of a legal assessor is to provide independent advice on the law. He or she is not involved in the committee’s decision making. However, in December 2017, the ICAEW Regulatory Board decided that the committee should move towards appointing legally qualified (QC) chairs to the committee, and to individual disciplinary panels. The benefit of legal chairs is that they are able to fully participate in the decision-making process, in that they will be full members of the panel appointed to hear the complaint, but they will also be able to give legal advice to the panel, dispensing of the need for a legal assessor.
There is therefore currently a dual system of panels running, in that the remaining non-legal chairs continue to sit with two other panel members and a legal assessor, whereas the newly appointed legal chairs will sit with two other panel members only. It is envisaged that this dual system will continue at least until the current chairs’ terms expire. Consideration will then be given to appropriate replacements. It should be noted, however, that at least one non-legal chair will need to be retained to deal with complaints involving probate or reserved legal services, since the definition of ‘lay’ when dealing with such complaints excludes anyone with a legal qualification.
Operation of the committee
The quorum for a meeting of the committee, is four members: two lay and two non-lay members. However, it should be noted that the committee meet only once a year; at their AGM. Members also meet more informally at training sessions. The main function of the committee is to supply members to sit on disciplinary panels, which are required to be constituted of three panel members.
Panels sit over a day/number of days to hear evidence and submissions in relation to the complaints against a member/member firm. The format of hearings is set out in the Disciplinary Committee Regulations, and is similar to that adopted in civil and criminal proceedings, although a more informal approach can be adopted. Regulatory law is a well-established area and the hearings before panels of the ICAEW Disciplinary Committee have much in common with tribunals run by other regulatory bodies, such as the ACCA, GMC and NMC.
Panels may be asked to decide on preliminary issues, such as admissibility of evidence, whether a hearing should be held in public or whether a hearing should be adjourned. They will also have to ensure that their decisions follow the relevant regulations and bye-laws and adhere to the requirements of the ECHR. Decisions of a panel are judicially reviewable.
Decisions of a panel are reached after hearing evidence and submissions by both parties in relation to the complaint(s) before them. Decisions are reached on a majority basis, and the decision is reduced to writing in a ‘record of decision’ which will be sent to the member after the hearing. Currently, the record of decision is drafted by the legal assessor, after discussion with the panel members. The record is then approved by the panel members before being sent to the parties. The newly appointed legal chairs will be expected to draft the record of decision of the panel.