Thread by @tribunaltweets

Good morning. We are back in court today tweeting a hearing for an application for judicial review. The case pertains to freedom of speech for professionals who are regulated by professional bodies in this case the Institute & Faculty of Actuaries (IFOA)
#OpenJustice #FreeSpeech

PL, an actuary, is undergoing IFOA’s disciplinary process for criticising religion on social media. He is in court today seeking a JR of the IFOA’s disciplinary procedures which he argues are not sufficiently independent.

PL is represented by Jon Holbrook @JonHolb (JH)
IFOA are represented by Joanne Clement QC (JC)
The Judge hearing the application is Mr Justice Choudhury (Judge or J)

JH is checking whether J has relevant bundles and going through what they are. Permission refused prev. on 27 May. JH set out why this permission should have been granted

JH: 2 fundamental human rights here: freedom of expression and right to a fair hearing. Intersection of those rights are in play in this claim. IFOA could exclude PL from membership if they are right via a body that is not independent of itself

Comparable to CPS bringing a case and having the person tried by a body not independent of CPS. Im exaggerating to make a point but in essence IFOA are arguing Art 6 is not engaged.

The issue here is somewhat novel. Traditionally professional bodies have concerned themselves with matters that impinge on a professionals practice. Here PL tweeted matters about political issues not relevant to his job

JH continues: PL had a 34 year unblemished record. Extra powers that a no. of professional regulators are now exercising. See case of Holbrook and BSB, succeeded on Art 10 grounds but concluded Art 6 not engaged.

That decision highlights why this is such an important matter. Mistake here by IFOA is idea that PL's right to practice is not at risk & therefore Art 6 is not engaged.

IFOA argument has slightly changed. This shows there is no clear knock out point for them. In pre-action corres IFOA reserved its position on Art 6. Then when claim issued, IFOA did not major on this point.

Now say its not engaged. Their skeleton says issue is whether his rights have been 'determined' and just because impugned doesnt mean determined. Also that as right to appeal there is no issue

JH continues: Are PL's civil rights being determined? Ive addressed this in my skeleton. This is an issue of substance and not form. Art 6 cannot be avoided because determination is a disciplinary proceeding. This is not right.

JH references some authorities (Coney?) A case where a medical practitioner was suspended. Strasbourg court found Art 6 was engaged. A further authority (precedent case discussed by JH).

JH: to see whether a case determines a civil right, only the character of the issue is relevant. The character here is the right to speak freely. JH goes to another case ref.

JH: In this case again it was the right to continue as a medic(different right to the one we are considering today) but it was determinative. IFOA is wrong to say Art 6 only relevant to whether can continue with your profession. Complete misreading. Art 6 relevant for all rights

JH goes to another case where Art 14 and Race discrimination is relevant. Art 14 engaged Art 6 in that case. But as you know in cases such as Forstater and others, discrimination can also occur on the basis of belief.

JH gives a further bundle ref for the McCann case. Here we can see rights of freedom of expression under Art 10 are civil rights which necessarily engage Art 6. Now lets go to case of Miller and police turning up at his house for a non crime hate incident.

Relevant there was Art 10 freedom of expression. The court of appeal said in para 68 that chilling effect in context of freedom of speech is important. Private citizens must be able to express their views on controversial matters.

Free speech is an essential building block of a democratic society. In para 70, it says there is comparatively little action needed to be interfering with art 10 rights

JH continues: Another case ref (Mattoo?). Dr M argued he had suffered a loss of rep after he was sacked. However rep loss was a consequence of decision and not determinative. I accept when IFOA says must be directly decisive and must be a link.

PL is facing a direct challenge here to freedom of expression. J: Isn't primary issue breach of code of conduct?
JH: In the case of Dr M, the issue only happened after dismissal. Here PL is facing an allegation that his tweeting are public statements that have bought IFOA

into disrepute. How can that not engage art 10? In any other capacity eg a crime he was alleged to have committed then there would be no doubt of his art 10 rights.

A person cannot be silenced merely because of the form of the proceedings eg professional disciplinary. We must focus on the substance.

JH: Pls see para 10 to 14 of bundle. Discusses Coney. The courts have consistently said Art 6 must be given a broad application. All I have to satisfy you of today is that my case is arguable. I submit they are.
J: Yes, how are we for time?
JH: Couple of other points.

We both accept IFOA is public body. I note IFOA state in some of their material that their disciplinary scheme is intended to be human rights compliant.

We have also set out 9 reasons why there is an issue of independence in the IFOA disciplinary process and this is crucial. And its an art 6 issue and I don't argue that its satisfied by the right to appeal. The appeal panel also not sufficiently independent and there is limited

jurisdiction. The notion of full jurisdiction is very fact sensitive. We are concerned with private rights and I say there are so many question marks about the first tier body that it must be arguable that rights of appeal are not sufficient to rescue any wants of Art 6.

One further case (Holder?). This was a solicitors disciplinary case. The master of the rolls appointed the disciplinary panel. Thats not what we have here. Appointments are made by a body that IFOA controls (IFOA appoints 4 out of 6). So I dont accept Holder helps IFOA here.

JH returns to the Dr M case. Dr M could have claimed unfair dismissal which added a third layer of rights which could be argued to help satisfy art 6 rights.

But even there the judge said the court must be able to determine issues of fact. Here issues of fact will be central so full jurisdiction must mean full jurisdiction by independent tribunal.

Finally, there is an issue of delay. I submit we are not out of time but even if we are you should grant an extension. If there is no prejudice to PL than why not? This is an ongoing disciplinary process so harm will crystallise in future.

J: Thanks. JC over to you. JC: There are 4 stages here plus a request to extend time. 1. is it arguable that IFOA exercising a public function.
2nd stage that determining PL's civil rights. 3rd panel not independent 4. appeal process not sufficient

Prev judge was correct to refuse permission. Park 1.
2. we agree the right to practice a profession is a civil right. PL is not being prevented. We agree a convention right is a civil right. The issue is whether the tribunal is determining PL's civil rights. Thats not even

arguable. Go to the text of Article 6. The disciplinary panel is not determining here. Impugned does not equal determined. Look at what the panel is tasked with.

The definition of misconduct is found at page 347. Any conduct by a member to fail to comply with integrity, byelaws etc. That's what the panel will look at. Definition of integrity is in Actuaries Code at 253 of the bundle.

We can see PL tweeted or retweeted about the Islamic religion using inflammatory language or language designed to offend Muslims. That is what they will look at. They are not looking at whether Art 10 breached.

There is binding authority to support IFOA's case in the Dr M case. Dr M refused to accept re-skilling offer. They exercised a contractual right to dismiss him and the decision did not determine a civil right or Art 6.

The court concluded the right to enjoy a good rep is a civil right but was not determined by the dismissal. There has been no determination here as the disciplinary process is ongoing. PL needs to wait for the decision before he could make his argument that his art 10 rights are

infringed. In JH's own appeal, the panel were unable to accept JH argument about rights to free speech, it was about professional rules. Again, the panel here is not determining art 10 rights.

See case ref (Conig?) from 1970s. Dispute between individual and public authority. Again this was not looking at determination of a civil right. JC cites a further case where there was a determination of right to practice a profession and argues not the case here.

Now on to independence of panel and the 9 factors. We say that context is everything. No convention rule that prevents professional self-regulation. The Q is whether taking into account all circs its adequate.

Criminal cases that have severe sanctions such as imprisonment are different. We have set out why we think there is sufficient independence. Includes the method of appointment and that there is no professional benefit for individuals and role is unpaid.

Now onto stage 4. PL could actually appeal to this court if his art 10 right were infringed. So even if he gets over hurdles 1, 2 and 3 he cannot argue this court is not a court of full jurisdiction.

If IFOA is a public body, it must act in accordance with convention rights. Note this court is also a public body. In terms of delay, on any analysis this case is out of time. The breach crystallises at point of referral to disciplinary panel

Given the merits of the claim we say you should not extend time. PL's explanation for the delay is also not satisfactory - he said he did not know the nature of the process but he was a council member, he would have known enough, no good reason. End of my submission

J: JH?
JH: You need to look at what is alleged to see whether art 10 engaged. There is clearly a chilling effect. Relatively little interference from public bodies needed as we see in Miller.

Chilling effect most definitely constitutes a determination. The argument that you have to wait for a sanction is not right.

You must be able to challenge the structure of a tribunal, you don't have to wait for sanction. Going to BTAS and the JH case, see para 75, they elevate form over substance. Plainly wrong. This is such an important issue that the courts need to clarify.

European courts have said you must not ignore the substantive right in play, clear in Coney and another I have cited. On self-regulation, that is a red herring. PL makes no issue with this, he just expects independence of IFOA.

Its taken well over 1.5 hours to go over this, that combined with lack of clear authorities is reason alone to proceed.
J: thank you

J: Background is that PL is an actuary, IFOA regulates and sets standard of conduct. In 2020, PL tweeted and retweeted about Islam. IFOA received complaints the tweets were offensive. Despite resignation of PL, the disciplinary process continued. 8 June 2021, IFOA referred to an

investigation. In Sep 2021, case management meeting gave directions for a 3 day hearing before a panel. This has been stayed pending this application.

PL alleges these were unlawful decisions due to lack of independence and partiality. JH argues his rights to tweet on these matters are protected by art 9 and 10.

JC submits claim is out of time and claim is unarguable as Art 6 not engaged.

She also submits PL has in any event appeal rights to the disciplinary tribunal and the court. In my judgment, the claim is arguable. IFOA accepts that it is a public body, then on that basis the Q is whether the disciplinary tribunal (DTP) will be 'determining'.

In my view the position on authorities is not so clear to say there is nothing in PL's claim. The further point as to whether DTP is independent is fact sensitive so I would say arguable. PL does face a hurdle in terms of availability of evidence but not relevant to whether DTP

is independent. There is a Q of delay here. PL did not act properly in bringing proceedings. Although I grant permission it remains open for IFOA to say out of time. I must state this is a borderline decision so PL should not raise his hopes.

JH: My lord thank you. Can we discuss costs?
J: You can make written decision in 7 days on 2 sides of A4
JC: We will be able to respond?
J: yes

JH: May I submit appropriate to make no order for costs to date at this stage. We have secured permission, it is just not justifiable for IFOA to rack up £25k of costs and ask PL to pay £17k. Justice is out of reach if citizens are faced with these costs.

JC: My lord now you have granted position, it comes later anyway ?
J: yes
JH: Standard directions?
J: yes one day hearing

Discussion on timetable and availability for next hearing.

JH: Can I ask for stay so that PL can look into source of funds for next stage? I wouldn't want IFOA to rack up costs during that time,
JC: Agree
J: OK, stay until end of August.
JH: Can I ask for it until 16 Sep?
J: Alright. 14th October for grounds of resistance.

JH: One final issue of disclosure. We are keen to see the proformas of the determination review sub-co. Redact if necessary but please disclose.

Not going to rule on that now. Make separate applications for disclosure.
Thanks all.
END/