Publicising disciplinary and regulatory hearings and outcomes
The ACCA Regulatory Board (the Board) provides independent oversight of ACCA’s disciplinary and regulatory arrangements. In 2012, the Board carried out a review of ACCA’s regulatory and disciplinary procedures to ensure they are fit for purpose, independent, fair, proportionate and in the public interest.
The Board made a number of recommendations, including the introduction of independent legal advisers into ACCA’s regulatory and disciplinary committees. This enhances the independence of the lay-majority committees by moving the provision of legal and procedural advice to external legal advisers. Legal advisers were introduced into the regulatory and disciplinary committees from January 2013.
Two of the Board’s recommendations which represent a significant change to ACCA’s current regulatory and disciplinary arrangements are in regard to publishing forthcoming hearings and the outcome of committee decisions.
Naming the member, firm or student due to appear before a disciplinary or regulatory committee in the pre-hearing news release
It is ACCA’s current practice to anonymise all pre-hearing news releases. If an enquiry is made as to whether a particular member is due to appear before a committee, that information will be given, but the general news release is anonymous.
Once the hearing has taken place, and only if an adverse finding has been made against the member, the decision of the committee is published naming the member. In exceptional circumstances, the decision is anonymised, but this is very rare. It applies only in situations where publication of the name would lead to an unusual adverse impact upon the member or a third party, over and above the adverse impacts which would flow naturally as a result of named publication (for example, an unusual impact upon a person’s health or safety).
ACCA carried out some benchmarking on the Board’s behalf and it was noted that ACCA was the only regulator of those benchmarked, including the Institute of Chartered Accountants of England and Wales and the Financial Reporting Council, that did not name the member in pre-hearing publicity. The Board’s view is that this position is no longer tenable and one with which ACCA concurs.
Publicising orders of the disciplinary and regulatory committees as soon as the public hearing has taken place
Currently, ACCA does not publish the decision of a disciplinary and regulatory committee until the committee’s decision has become effective. This is normally after the appeal period has expired or at the conclusion of the appeal process (except in cases where there is a continuing risk to the public and the committee has ordered that its decision is effective immediately).
The Board is concerned that such delay, coupled with the anonymity of the pre-hearing publicity, can mean that members of the public may be unaware of the matter. The Board therefore recommends that where a hearing has been held in public, the decision made at that hearing should be published immediately irrespective of when the decision becomes effective. ACCA concurs with the Board’s view.
The effect of accepting the recommendation would be that the public would become aware of a decision made against a member even though it might subsequently be overturned on appeal. Therefore, any news release would clearly indicate that the decision was subject to appeal.
As noted above, ACCA agrees with the Board’s recommendations but they represent a significant change of approach. The public interest is paramount in any regulatory and disciplinary system and transparency is a cornerstone of such a system. The UK courts have recognised that a profession’s reputation, and therefore the reputation and interests of its members as a whole, outweighs the interests of any one individual member. In addition, transparent disciplinary and regulatory arrangements enhance public trust and confidence in ACCA and the profession, particularly where the profession regulates itself.
In summary, ACCA believes the changes proposed are necessary to enhance the transparency of ACCA’s regulatory and disciplinary arrangements and ACCA’s reputation as a robust and reliable regulator.
ACCA aims to introduce the new publicity protocols in 2014 and if you have any strong views on these proposed changes, please email them to Sundeep Takwani, director – regulation.