“immoral or outrageous or disgraceful” – Should legal regulators embrace “call-out” culture ?

The Association of Regulatory and Disciplinary Lawyers (ARDL) hosted a seminar on 30 April 2019 to discuss the degree to which legal regulators can, or should, police private life. This was an important and interesting topic.

A representative of the Bar Standards Board (BSB) and another from the Solicitors Regulatory Authority (SRA) made contributions, using ten hypothetical scenarios; doubtless partly derived from actual cases.

The audience was invited to vote on each, albeit in just a minute or so.  This provoked a lively floor discussion, though the format inevitably enabled only the most cursory consideration of each thumbnail sketch.

The hypotheticals revealed a confluence of themes. Four of them concerned speech, such as an example of a lawyer making a political party speech opposing the provision of services to those born outside the UK. Four concerned what might loosely be described as attempts at initiating or maintaining personal relationships, such as the lawyer who joined a dating agency, but lied about his age. The other two involved honesty in financial matters, such as having to pay a penalty notice after not paying a travel fare.

The SRA alluded to some well-known legal cases, whilst emphasising the changing landscape of legal regulation. According to legal orthodoxy, failings outside the performance of professional duties, which amount to “moral turpitude” (whatever that means today), can constitute professional misconduct. See Roylance v GMC [2000] AC 311, per Lord Clyde at para. 42:

serious professional misconduct may arise where the conduct is quite removed from the practice of medicine, but is of a sufficiently immoral or outrageous or disgraceful character…..

This has been reiterated in Remedy UK Ltd v GMC [2010] EWHC 1245 (Admin), per Elias LJ at para. 37:

 Misconduct is of two principal kinds. First, it may involve sufficiently serious misconduct in the exercise of professional practice such that it can properly be described as misconduct going to fitness to practise. Second, it can involve conduct of a morally culpable or otherwise disgraceful kind which may, and often will, occur outwith the course of professional practice itself, but which brings disgrace upon the doctor and thereby prejudices the reputation of the profession….. Conduct falls into the second limb if it is dishonourable or disgraceful or attracts some kind of opprobrium; that fact may be sufficient to bring the profession of medicine into disrepute.

 What does “opprobrium” mean? It is, like so much rhetoric in this area, a relic from an earlier era. How many professionals, still less members of the public, deploy such terms in ordinary discourse, I wonder? The OED defines it to mean: “Disgrace or bad reputation arising from a person’s shameful or dishonourable conduct; infamy; shame; reproach.”

What does “honour” mean in the twenty-first century?  It harks back to a feudal era of knights in armour, and a pre-modern society. Infamy, according the OED, means “Evil fame….scandalous repute….shameful vileness”. As for shame, this evokes certain pre-modern notions, such as the idea that rape victims are damaged goods. It is tempting to describe these terms as scarlet letter words.

In Pitt & Tyas v GPC [2017] EWHC 809 (Admin), a challenge to new pharmaceutical standards, the applicants acquiesced in the regulator’s “mission creep” to some extent, despite seeking to rein it in:

Mr Pitt says at para. 3 of his statement: “I accept that being a registered healthcare professional means that I cannot separate my private from my professional life.” Mr Tyas says at para. 3 of his statement: “I accept that in order to maintain public confidence in the Pharmacist profession, it is necessary for regulatory authority to include provision to enable action where a Pharmacist’s competence or conduct outside of his/her hours of professional work as a Pharmacist may impact upon his/her fitness to practise …”

Singh J. commented that professional standards “need to be interpreted fairly and as a whole. They also need to be interpreted in a way which is rooted in real life and common sense.” He went on to give the following examples:

 If the Claimants are not polite over a board game they will not need to lose sleep over whether they can make the relevant declaration that they have complied with the Standards.

On the other hand, ……, if a pharmacy professional engages in a racist tirade on Twitter, that may well shed light on how he or she might provide professional services to a person from an ethnic minority.

Back to our seminar. The SRA representative explained that allegations of sexual harassment had soared from 7-8 cases to over 50. This dramatic inflation of complaints is attributed to what might be called “the Weinstein effect”, or the “Me Too” movement. In March 2018, the SRA issued an ominously entitled “Warning Notice” about the use of Non-Disclosure Agreements (NDAs). Social media was also an object of concern: hence another “Warning Notice” issued a few months earlier, in August 2017 on that topic.

The SRA is not the thought police. The BSB’s Handbook suggests a similarly hands-off approach:

gC27 –

Conduct which is not likely to be treated as a breach of Rules C8 or C9, or CD3 or CD5, includes (but is not limited to):

.1 –

minor criminal offences;

.2 –

your conduct in your private or personal life, unless this involves:

.a –

abuse of your professional position; or

.b –

committing a criminal offence, other than a minor criminal offence [Italics in original]

 

To take a rather extreme case, the BSB decided to take no action against a female QC, who admitted outraging public decency after being found in flagrante with her instructing solicitor outside Waterloo station in August 2015. After first accepting a police caution, the QC later changed her mind, arguing that (a) she was too drunk to remember what happened, and (b) inferentially, she was the victim of a sexual assault. The latter claim ensured her anonymity for life. The SRA took no action against the solicitor.

The BSB now seems to be rowing back from its published guidance, however. In December 2017, it confirmed that it wants to police speech.  That is a disturbing development, especially when its own brief statement on social media use, promulgated in March 2017, makes no mention of Article 10 of the European Convention on Human Rights. This omission was evidently tactical, and not an oversight. This document was drawn up with input from prosecutors.

It should also be of concern that the BSB now takes the view that the boundary between private life and professional regulation is “fluid”. This again is problematic, not least because of the lack of certainty at any given time as to when, and in what circumstances, it may seek to invoke jurisdiction over a barrister’s private life which is (of course) protected by Article 8 of the European Convention. This lack of legal certainty gives rise to the risk of abuse by selective enforcement.

The BSB claims that it has a responsibility to lead, as well as to follow, and seemingly is swayed by certain aspects of “call out” culture. It argues that it cannot leave decisions to intervene to the vagaries of personal views: presumably, by this, it means individual complaints. Equally, and arguably inconsistently, it claims that it cannot be prescriptive.

The BSB appears preoccupied by fast-paced movements, such as the “Me Too” crusade, and even Extinction Rebellion. But surely legal regulators ought not to be swayed by ideological campaigns pursued by those with axes to grind, or orchestrated by Twitch-mobs. Is it to become a disciplinary offence to criticise the likes of Greta Thunberg, or to voice scepticism about climate change?

Pandering to destructive group outrage is also inconsistent with regulatory objectives, such as: support for the rule of law, and encouraging an independent, strong, diverse and effective legal profession. One thing is clear: call-out culture is cruel – the modern equivalent of stoning. In reality, it is the province of zealots. It is no way to do social change and still less should it be a basis for legal regulation.

If the BSB were prepared to share its real agenda, for comment and debate, that could affect outcomes. Unfortunately, it seems reluctant to engage in debate with the profession about these important matters. That is very regrettable.

Indeed, as a brief perusal of its consultations page shows, it is a regulator that seems somewhat insulated from the profession as a whole. Thus, for example, not a single member of the Bar responded to its 2018 consultation on Modernising Regulatory Decision-making, in which it expressed a wish to move away from complaints terminology. Only one barrister and one set of chambers responded to its Rules consultation on Transparency Standards, also held in 2018. Perhaps it is time that barristers set up a proper trade union to act as an effective voice on matters of fundamental concern to the profession?

 

Barbara Hewson, Barrister

 

 

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