Thread by @tribunaltweets

We are reporting for the first time from a Disciplinary Tribunal Panel of the Institute & Faculty of Actuaries (IFoA) this morning at 10am.

The independent panel will hear submissions & decide if the IFoA has the legal right to discipline former member, Patrick Lee.
#OpenJustice

The substantive issues on freedom of speech relating to complaints about social media posts Patrick Lee made whilst he was an member will not be considered today.

The issue today is whether IFoA Rule 4.4 of the Disciplinary Scheme is invalidated by Bye-Laws 27 (any Rule “contrary to, or different from” the Bye-Laws shall be “invalid"), & 59, which does not refer to former members.

Abbrevs:
Institute & Faculty of Actuaries: IFoA
Disciplinary Tribunal Panel: DTP

Panel members (PM):

Peter Wrench (lay member of panel and Panel Chair): PW or C for chair
Paul Rae (lay PM): PR
Simon Head FIA (Fellow of the Institute of Actuaries, actuary PM): SH

Sharmistha Michaels (barrister, legal adviser to IFoA DTPl): SM
Rachna Gokani (Counsel for the IFoA): RG

Jenny Higgins (IFoA prosecutor/Case Manager): JH
Julia Wanless (Judicial Committees Secretary): JW

Nicholas Leviseur (Counsel for Patrick Lee): NL
Patrick Lee (Respondent): PL

Respondent - also abbreviated as R.

C - considering preliminary application. Written submissions from both parties have been carefully read by PMs.

NL - intends to argue ultra vires, and then a second argument on PL's original objection.

NL - applying the disciplinary rules to firmer members is ultra vires.

PL ceased to be a member [30 Sept 2020].

Allegations were formulated after 1 Oct 2020 after PL had left.

NL - the relevant version of the disciplinary scheme 2018 "the rules"

R was a Council Member and suspended himself and resigned in 2020.

[Refers to submission we don't have]
1 Dec 2020 - executive referral - allegation of several inappropriate tweets and retweet on social media

NL - outlines the content re Mr Scott's investigation. he emailed IFA General Counsel after PL's resignation.
25/11 - 2 months after resignation.

Second complaint from the Islamophobia Complaint Unit received after resignation.

How do scheme rules work?

NL - Section 2 paragraph 5 onwards.

Para 5 provides what is to happen and how. Every allegation shall be referred by case manager to Chair of pool of investigation actuaries, and assign one.

As soon as practical, info should be sent to the R.

NL - That stage had not propelry been reached before PL resigned. Assignment had not occurred.

Para 8.1 - Chair & investigating actuary will present the case.

NL - the IFoA counsel's case is the relevant rule to consider is Rule 4.4, set out in MR Scott's WS, quotes: references to member should include former member, who should be bound [by the disciplinary rules] not withstanding that the membership has ceased.

NL - Is that provision lawful?

IFoA has no power to make disciplinary rukles unless it is in its bye-laws, powers given by Royal Charter.

NL - Revised bye-laws - definition of rules - bye-law 26 any reference to rules will be confirmed by Council, bye-law 27 power to make or mend or delete rules. [quotes]

Any exercise with the power is ultra vires - cannot be done,

NL- carefully frame byelaws with word invalid.

Bye-law 59 provides for a disciplinary scheme for members, setting out grounds and a fair and just process for members, and action to be taken.

Member means member, not past or putative member.

NL - can member be defined as non member? Nothing in byelaws that permits non-members to be defined as members.

Does the relevant disciplinary rule effective to override the byelaw and charter?

NL - lists the references under heading disciplinary scheme to a member, conduct by a member etc

NL- 4.4 - conduct before membership and anything up to the date he ceased to be a member.

Byelaw 46 - a condition of membership that they agreed to be bound by the charter, byelaw, rules and continuing prof dev. This binds the faculty too.

NL - Byelaw 59 - does not provide for former members.

Council has powers to delete or amend the rules, not contrary to or differently from the charter and the byelaws.

The provisions of the charter and byelaws provide for membership, not for anyone who is not a member.

NL - Common law at the time of charter did not [conceive] those who are not members would be bound by the charter.

Difficult faced by Council is that for ex members to be bound is different to and contrary to the provisions of the chaerter and the byelaw.

PL is not bound.

NL - under the charter such rules are invalid - there is no power to bring in the laws. He isn't a member therefore not bound.

Not open to the council to argue that such a provision should be in place.
It might be argued there is power to do so - if the Royal Charter is amended.

NL - there is no such amendment. Ultra vires.

Second argument is more subtle - PL's letter - 17/1/22.

Byelaw 59 - the disciplary scheme is expressly limited to members, not former members, defined under Rule 23.

NL - the term member includes requiring former members to cooperate but not to the disciplinary process.

He did not breach duty to cooperate in Rule 23.

Even if P decides against PL on primary argument, he hasn't failed on Rule 23.

NL - Rule 23 provides definition clauses.

NL - quotes rule 23. The new rules don't affect PL.

C - no questions.

RG - starts with bundle management - 132 pages on procedural matters and brief refernce to 300+ page tribunal bundle.

RG - ask P to have in mind the allegation is that tweeted and reteed on twitter, he used language that was offensive, that would demean muslims.

2007 - PL became Fellow.
2012 - Governing Body.
2013 - letter re statement on islamic religion on twitter - asked to remove them.

RG - [dates missed]
3 Sept 2020 - PL was advised of investigation
[dates missed - PL engaged with investigation]
30 Sept 2020 - did not renew membership.

quotes from letter - "for avoidance of any doubt, the disiplinary process continues"

RG - Letter - PL - "yes I understand that the disciplinary process continue"

So is PL exempt from process?

Section 2 Disciplinary Scheme (DS) provide for a scheme for complaints, and process. Do these rules allow tribunal to consider a case against this R?

RG - do they apply? Yes - Rule 4 makes clear it applies to former members. They have been brought against former members. Nothing new.

4.2 - misconduct - any conduct in course of prof duties or otherwise ....

4.3 - may include any conduct before or after became member.

RG - 4.4 - includes former member shall remain bound by DTP not wothstanding that membership has ceased.

8.22 - deals with available sanctions vii) refers to excluding a former member - an explicit sanction for former members.

RG - para 23 of rules - in these schemes unless context otherwise requires - so context is important.
[quotes].

Rule 4.4 is the complete answer.

RG - wider context - PL refrred 1/9/2020 a month before resigned, an independent actuary was appointed, and he engaged in process for a month.

5/10/20 - email re discplinary procedure will continue - acknowledged by PL

RG - [too fast]obligations continue - members cannot avoid process by resigning.

Royal Charter of IFoA - para 2 - objects of IFoA - include regulate. para 3 re powers.

para 11 & 12 - reference to byelaws - pursuant to this and our Charter [missed ... repugnant]

RG - condition that members agree to be bound by charter, regs, rules, disciplinary scheme, the object of the charter.

Refers to her note (which we don't have) - code applies to all categories of members and indicative sanctions refer to former member.

RG - on their own, and in context with Charter, the disicplinary scheme applies to ex members. It would be repugnant for the rules, codes designed to discipline members [did not apply to former memebrs]

C - we've heard submissions. Any else, NL?

NL - in essence, RG says the rules provide the answer to this case.

The rules cannot provide the answer as to whether the rules are valid. That would be self referential. It is wrong.

NL - Clause 16 of the Charter - extremely clear, Charter prevails over byelaws, and byelaws over rules.

Question is what do the byelaws say, and the charter? By what power are the rules brought into being. If by a byelaw, then the byelaw prevails over the rules.

NL - the byelaws provide that the rules may not be framed as they are. No power or validity unless within the powers of the council.

C - Paraphrasing RG's argument, byelaw 59 - if a member's conduct having been called into question can resign, that is repugnant to the objects.

C - RG referred to object as regulation of profession.

NL - It doesn't quite say that.

Quotes extensively from the Charter objects.

NL - petitioners for the Charter [missed] - nothing to do with regulation. Training, and influence high standard of usefulness among members.

The Royal Charter seeks to do none of things my learned friend seeks to do.

NL - PL's behaviour, whatever it might be, tweeting about a particlar religion, has nothing to do with his profession.

True all professions do now seek to [regulate] behaviour.

It would come as a particlar shock to [founding 19th century] members to have such a broad purview.

PM - asks about objects paragraph 2.

NL - quotes - two must be in balance. Charter object granted for science [missed]. It equally important that powers granted are circumscribed and limited.
Not a catchall provision allowed to do whatever it likes - schedule makes powers clear.

RG - Charter interpretation is not accurate or complete. NL referred to original charter.
1884 amended 2010. Merger institute and faculty - revised charter.

RG - It is said I am asking you to focus on rules. Tribunal is concerned with application of rules. R had opportunity to being a judicial review and didn't do so.

Q is what are we allowed to do by our rules? Rules are primary focus.

C - legal advice from SM, please.

SM - is a non member subject to the IFoA disciplinary scheme 2018?

SM - byelaws 27, 46, 47, & 59, also reference to Charter and rules.

R resigned 30/9/2020.
Fellow from 2007.
Council member 2012.

complaints re 20/3/2020- 20/8 2020

SM - reviews and quotes rule 4, 5 & 8.22, para 22 of rules of scheme.

Summarise the two arguments.

It is ultimately a question of approach for the panel.

NL & RG agree date of membership lapse is 30/9/2020.

Nothing further from NL nor RG.

Panel goes into private session.

The Panel has rejected PL's application on both ultra vires & the arguments on the drafting of the disicplinary scheme.

A determination will be issued this week.

This means this case on freedom of speech will proceed to a full disciplinary tribunal hearing.

#OpenJustice

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