Publication of Disciplinary Information

6 January, 2015

Executive Summary

1. Following consultation, the Council agreed, in its July 2014 meeting, to publish dates and locations of forthcoming Adjudication Panel misconduct hearings and formal determinations of conduct complaints heard by the Panel – please see the CLC’s Interim Response to the Consultation published last September for more information on this. In its October and December meetings the Council discussed the following related items:
   1. Naming of respondents and a summary headline of the issue, prior to Adjudication Panel hearings;
   2. Regulatory and Other information to be published.

    

2. Information prior to Adjudication Panel hearings: the CLC Council agreed to publish the names of respondents and a headline summary of the charges of forthcoming Adjudication Panel hearings.
3. Regulatory Information: the CLC Council also agreed to publish a Regulatory Activity Information Report (RAIR) to include anonymised data on licensing and inspection activity; a narrative summarising frequent errors and lessons learned, usage of staff delegated powers, triggers for inspection, and reasons for non-approval of a licence application. It will also include which information the CLC does, or does not publish and the reasons for this.
4. It is intended that the identity of individuals/firms with disciplinary licence conditions will be published, subject to the review of such data at the end of Q2 2015. This will provide the regulated community with a 6 month period in which to prepare for the likely publication of this information. The identity of individuals/firms subject to other delegated powers – such as fines and directions – will not be published; nor will the individual risk profiles of firms.
   
5. Other Information: the Council accepted the recommendations to:
   1. publish individual responses to CLC consultations (in addition to the current summary of responses published after every consultation);
   2. publish the CLC’s management structure and contact details for staff;
   3. not to publish quality information , such as speed, accuracy and registration timeliness of conveyancing transactions.

CLC Publication Policy   

6. As stated in the CLC Publication Policy [insert hyperlink when available], the CLC is committed to making freely available information about its work to increase both our transparency and public accountability and to assist: consumers of legal services; the regulated community; the oversight regulator; partners in regulatory activity and law enforcement; and policy makers. Unless otherwise stated, information will be published on the CLC’s website.

PUBLICATION OF INFORMATION REGARDING FORTHCOMING ADJUDICATION PANEL HEARINGS   

7. As a regulator, and as per its publication policy, the CLC is committed to openness and transparency. The policy of naming the individual or firm and providing a headline summary of the allegation seeks to inform would-be consumers, and other stakeholders, of impending disciplinary hearings, their subject matter and the identity of the respondent.
8. The intended outcome of this policy is to help the consumer make an informed choice of instruction, to provide stakeholders, such as other conveyancers, with information which may inform how, or whether, to engage with a particular practice, and to provide assurance about the underlying robustness of the CLC’s regulatory regime.
9. This approach will be adopted due to its promotion of the 5 Better Regulation Principles of Accountable, Consistent, Proportionate, Targeted, and Transparent:
   

   Accountable	Demonstrates that formal disciplinary action is pending In interest of profession to see what it is we are doing and who it involves Creates an added incentive for cases which are taken to the Adjudication Panel to be substantive
   Consistent	Publication of information on forthcoming  hearings is consistent with approach of other regulators in the sector
   Targeted	In public interest to identify where it is considered there is a risk to consumer outcomes In interest of profession that we are promoting confidence in the regulatory regime and will name those who we consider may not be meeting their regulatory responsibilities Provides incentive for individual members of the profession to meet their regulatory responsibilities In interest of profession to have an idea of the subject matter concerning a particular firm which it might be engaged with
   Proportionate	It is judged proportionate to the risk presented by a firm or individual who is scheduled to appear before the Adjudication Panel to identify that risk to those with a vested interest Publication of the information will be accompanied by a caveat that the allegation has yet to be heard by the Adjudication Panel and there is a possibility that the Panel may find in their favour
   Transparent	Informs the consumer or stakeholder that there is a possible issue in this area These are public meetings and information can provide a prompt to attend if interested in subject matter Informs consumer choice and stakeholder awareness

10. It is acknowledged that publication of notice of the commencement of disciplinary proceedings against a named respondent may have adverse financial implications for the respondent or may prove prejudicial for firms, particularly if the Adjudication Panel ultimately finds in their favour (a consultation respondent voiced a concern regarding the perception of “no smoke without fire”).
11. It is considered that any prejudice to a respondent is outweighed by the benefits of such an approach, as outlined above, which include informing consumer, profession and stakeholder knowledge and choice. Publication of the information will be accompanied by a caveat that the allegation has yet to be heard by the Adjudication Panel and that the Panel may find in the respondent’s favour. The respondent will have the right to request removal of the public information following a finding of the Adjudication Panel in their favour.
12. FAQs will be published to put the information about Adjudication Panel hearings in context.

INFORMATION ON REGULATORY ACTIVITIES

13. The consultation found overwhelming support for publication of anonymised summary information – such as inspection numbers, triggers and themes, frequent errors etc. – on our regulatory activities. Consultation responses were mixed whether individuals and firms should be named under regulatory activities. Please see the previously published paper  for a detailed summary of the consultation responses.
14. The Council has agreed to the CLC publishing a Regulatory Activity Information Report (RAIR) which will include anonymised data on licensing and inspection activity, including a narrative summarising frequent errors and lessons learned, triggers for inspection and usage of staff delegated powers such as fines and directions. The RAIR will be published alongside the CLC Annual Report though elements of the information – such as frequent errors and lessons learned – may also be published on an ongoing basis to inform the regulated community in a timely fashion about improvements they can consider.
15. It was agreed that the CLC would not publish the identity of individuals/firms subject to delegated powers other than licence conditions. The licence will clearly differentiate between a condition applied as a standard licensing requirement and a condition otherwise applied in accordance with the CLC’s statutory powers.

Policy Purpose

16. The intended outcome of the publication policy outlined above is to help improve our accountability, increasing assurance about the underlying robustness of the CLC’s regulatory regime. It is also to help inform consumer choice.  A further review will be carried out in a minimum of a year’s time to gauge how well it is functioning and whether additional data should be published.
17. This policy approach will be adopted due to its promotion of the 5 Better Regulation Principles of Accountable, Consistent, Proportionate, Targeted, and Transparent:
    

    Accountable	Anonymised numbers of inspections provides information on one of our main regulatory risk-capturing activities Information on frequent errors and lessons learned can be used by firms to help them meet their regulatory responsibilities Information on licensing refusals helps identify the reasons behind decisions
    Consistent	Taking a phased and review approach to publication of information which might be judged sensitive or confuse, rather than inform, choice is consistent with a measured approach
    Proportionate	Publication of a disciplinary licence condition provides incentive for swift compliance (as the condition will be removed when it has been complied with, unless otherwise stated) Disciplinary conditions on a licence are the most serious sanction prior to the formal route of an Adjudication Panel hearing; we will have attempted to resolve the issue without placement of a condition Numbers and narrative demonstrates the types of regulatory actions taken
    Targeted	Naming firms subject to disciplinary conditions provides a credible deterrent for non-compliance with a CLC direction Naming of firms subject to disciplinary conditions, as opposed to all delegated powers, helps inform consumer choice, whilst protecting public and professional interest Information on lessons learned and frequent helps other CLC firms to proactively address similar issues
    Transparent	We are increasing the information on our regulatory approach Individuals/firms are named only where there is judged to be a potential risk to the public interest

OTHER INFORMATION

18.  The consultation asked whether the CLC should publish any other information. Responses  included publication of all individual consultation responses; if the Adjudication Panel decide not to name an individual, the reasoning behind this decision should be declared; identification/review of what the CLC does, or doesn’t publish (this paper and its predecessor seek to fulfil this brief, along with the RAIR); a diagram setting out the CLC’s management structure; and quality information collected by the Land Registry regarding aspects of the conveyancing process, such as speed, accuracy and timely registration of documents with the Land Registry. The Council agreed to the recommendation to take forward a version of each suggestion.  Council agreed it should not publish quality data since this was collected by the Land Registry and that it would create a disproportionate regulatory burden to require CLC practices to provide it to the CLC.

Policy Purpose

19. The intended outcome of this policy is to increase transparency in the way in which the CLC exercises its functions.

    For more information on these decisions, see the:

    • Council minutes [insert hyperlink when available]
    • CLC’s Interim Response to Consultation, September 2014