Whose rights? Professional discipline and the incorporation of a (human) rights framework: The case of ICAS

Critical Perspectives on Accounting 23 (2012) 17–35

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Whose rights? Professional discipline and the incorporation of a (human) rights framework: The case of ICAS Catriona Paisey a,∗ , Nicholas J. Paisey b a b

Division of Accounting and Finance, University of Stirling, UK Heriot-Watt University, UK

a r t i c l e

i n f o

Article history: Received 5 April 2008 Received in revised form 2 June 2011 Accepted 21 October 2011 Keywords: Discipline Complaints Human rights Rights Duties ICAS Accountants Public interest

a b s t r a c t Professions typically develop disciplinary systems that allow them to caution, fine or expel members whose conduct falls below expected standards. The Institute of Chartered Accountants of Scotland (ICAS) has amended its disciplinary procedures following challenge under the UK’s Human Rights Act 1998. This paper aims to explore the implications of the incorporation of a (human) rights’ framework on ICAS’s professional discipline. Disciplinary procedures are located in the context of the nature of professions and professionalism. Human rights legislation relevant to professional discipline is examined and its impact in the context of the nature of rights in general, and human rights in particular, is explored. The ICAS disciplinary changes are discussed in the context of a Hohfeldian-type framework of a range of types of rights. ICAS’s procedures are shown to be multifaceted and, when examined in terms of rights (and, where relevant, duties) provide added insight into the nature of accountancy’s professional discipline, but deficiencies remain, with the public interest continuing to be subservient to the private interest of accountants and their professional body. © 2011 Elsevier Ltd. All rights reserved.

1. Introduction Although the definition of a profession is contested (see, for example, Larson, 1977; Willmott, 1986; Roslender, 1992), one of the characteristics commonly associated with professions is the existence of procedures to enable professional bodies to discipline errant members (Abbott, 1988; Abel, 1988). The rationale for the existence of disciplinary procedures is that, in order to accept the advice provided by professionals, clients must have confidence in their competence. As the Council of The Institute of Chartered Accountants of Scotland (ICAS) stated: Council recognises the continuing need of ICAS to regulate its members: its good reputation is at least in part due to ICAS’ willingness to enforce the professional standards it has created. . . (ICAS, 2003, p. 9). The regulation of professional standards incorporates both enforcement, through discipline, and standards, via ethical guidance. This paper is concerned with the former.

∗ Corresponding author. Tel.: +44 (0) 1786 467296. E-mail addresses: [email protected] (C. Paisey), [email protected] (N.J. Paisey). 1045-2354/$ – see front matter © 2011 Elsevier Ltd. All rights reserved. doi:10.1016/j.cpa.2011.11.008

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In the UK, the professions have historically regulated themselves1 although current developments in medicine2 and law3 show that the concept of self-regulation has been altered by the imposition of a statutory framework designed to offer a more independent procedure to encourage public confidence. The UK’s accountancy profession has historically been selfregulating although this has recently been modified by the development of a statutory framework (provided through the Companies Acts 1985, 1989 and 2006, the Financial Services Act 1986 and the Insolvency Act 1986) which imposes new legal duties upon the profession. Given the trend towards increasing scrutiny of the professions, self-regulatory regimes that operate in camera, with a majority of members of the professional body judging the work of fellow members, look increasingly incestuous and potentially raise human rights concerns. Within the accounting literature, disciplinary procedures have been criticised for being more effective in protecting the private interests of individual accountants and their professional bodies than the interests of their clients and the wider public (see, for example, Briloff, 1978; Canning and O’Dwyer, 2001, 2003, 2006; Sikka, 2001; Mitchell and Sikka, 2004). The disciplinary procedures of ICAS were modified in 2004 following challenge under the Human Rights Act 1998 (HRA 1998). As shall be discussed later, a small number of members, who had been the subject of recent complaint, claimed that the old ICAS disciplinary procedures system breached their right to a fair trial enshrined in the HRA 1998 because they were not independent and did not offer the opportunity for hearings to be held in public4 . The ICAS rule changes are important because they were motivated, at least in part, by a desire to protect ICAS against future claims on human rights grounds. This paper aims to contribute to the literature on the accountancy profession’s disciplinary procedures by exploring the implications of the incorporation of a human rights framework on professional discipline, with specific reference to the disciplinary procedures of ICAS. The paper is organised as follows. First, the accounting literature on professional regulation and discipline is examined in order to provide a context for the ensuing discussion. Second, in order to provide a theoretical framework for the paper, the implications of a human rights framework are discussed. This paper locates the discussion of human rights within a more general discussion of rights, viewing human rights as a specific subset of rights. Third, the UK accountancy profession’s disciplinary procedures are discussed, distinguishing between the unified procedure used for public interest cases and the individual procedures adopted by the various professional bodies, such as ICAS, for non-public interest cases. The ICAS review includes examination of the ICAS procedures that existed prior to 2004, the reasons for change and the new procedures. Fourth, drawing on the first three sections, the implications of the incorporation of a rights, including human rights, framework on the disciplinary procedures of ICAS are explored. The Hohfeldian model is commonly used in legal studies but has not been discussed within the accounting literature on professional discipline. This paper aims to add to the accounting literature by drawing on ideas from legal studies in order to explore the rights of the various stakeholders in the accounting relationship. To conclude, the paper assesses the extent to which the amended ICAS disciplinary procedures have addressed the concerns expressed in the research literature regarding professional regulation. 2. Professional regulation and discipline in the public interest In order to provide the necessary context for the ensuing discussion, the paper begins by discussing the reasons why professional bodies have disciplinary procedures and reviewing the accounting literature on professional regulation and discipline. Historically, the accountancy profession stressed virtues and ethical discourses such as duty, a life of service and calling (Everett and Green, 2007). These essentially character-based notions were evident in early ethical codes (Everett et al., 2005) but have been overtaken in prominence in more recent versions of the ethical codes by rule-based discourses, such as the client/consumer focus, independence and objectivity (Preston et al., 1995; Neu et al., 2003). Nonetheless, the public interest is still featured in the literature produced by professional bodies. For example, ICAS states that it “is obligated under Royal Charter to act in the public interest at all times” (ICAS, 2006c) and that the “public interest informs all that we do” (ICAS, 2011). ICAS states that “The Institute’s primary duty is to the public, a principle which distinguishes it from a trade association whose prime concern is to its members” (ICAS, 2008b). Disciplinary procedures are justified by ICAS on the grounds that “We investigate in the public interest the work of CAs to maintain the high standards expected of all” (ICAS, 2007a, p. 3).

1 For example, The Law Society and its Scottish counterpart, The Law Society of Scotland, and the General Medical Council have historically regulated the legal and medical professions in the UK. 2 In February 2007, the Department of Health issued a White Paper recommending major changes to the regulation of the medical profession including the proposal that medical professionals should be required to have their license to practice renewed every five years and that the professional regulators operating in the medical field should be independently appointed, with, as a minimum, parity of membership between lay and professional members, and should report annually to parliament (DoH, 2007). 3 There is now an Ombudsman to hear complaints when the channels provided by the Law Society (for England and Wales) and the Law Society of Scotland have been exhausted. The Law Society has an independent complaints’ handling body, the Legal Complaints Service. Cases involving misconduct can be referred to the Solicitors Regulation Authority, established in 2007, the successor to the Law Society Regulation Board. The name change is significant, signaling the independence of the new body. The new procedure for complaints against members of the Law Society of Scotland, effective from mid-2008, is also now independent. 4 One published example is Leonard Harris v The Appeal Committee of The Institute of Chartered Accountants of Scotland [2005] CSOH 57 (http://www.scotcourts.gov.uk/opinions/CSOH57.html).

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Neu and Graham (2005) believe that it is almost reflexive to argue that the accountancy profession should serve the public interest, yet few researchers have problematised the notion of the public interest. In the light of recent financial scandals, renewed attention has been paid to the concept which, for example, underpins the rationale for the Sarbanes–Oxley Act (Canada et al., 2008; Riotto, 2008). However, the term public interest is difficult to define, being regarded as ambiguous and subject to multiple interpretations (Dellaportas and Davenport, 2008). Griffith (1962) views the public interest broadly as synonymous with general welfare, a definition that is equally applicable to individuals and institutions. Saks (1994) views the public interest as the wider societal obligations of professions and not simply those advancing the individual well-being of clients but laments that professionals do not always act in such a manner. The public interest is therefore framed broadly, extending well beyond clients to society at large. The public interest is sometimes presented as the polar opposite of the private interest, the former focusing on the collective and the latter on the individual (Sawabe, 2005). The public and private interests are distinguished by different consequences (Minor, 1962) and different user needs, with restrictive practices employed by professions acting to privilege the private over the public interest (Zander, 1968). This is evident in literature that shows that while professions regularly refer to their role in protecting the public interest, the profession’s stated support for the public interest may not be evident in their actions which often prioritise self-interest (Hooks, 1991). While tensions exist between the profession’s public interest role and the duty to serve clients, the professional pronouncements themselves do not state how such tensions should be resolved (Gray and Collison, 2002). Empirical studies have shown a gulf between auditors’ (Windsor and Warming-Rasmussen, 2009) and tax practitioners’ (Stuebs and Wilkinson, 2010) public interest responsibilities and their actions, often influenced by private, client, interests. A similar gulf has been found in the actions of accountants working in business rather than the profession, with employer and self-interest often predominating over the public interest (Burt et al., 2011). The accounting literature on professional discipline similarly suggests that the public interest is not always the primary concern. Professional regulation and disciplinary procedures have received only limited attention in the academic literature, with the focus being on the nature of accountancy’s disciplinary procedures in a number of geographical contexts. Briloff (1978) discussed the disciplinary procedures of the American Institute of Certified Public Accountants (AICPA). He criticised AICPA for focusing on relatively minor offences even though there were some high-profile public scandals affecting the American profession at that time. Schaefer and Welker’s (1994) finding, that the US CPAs most likely to be disciplined for unprofessional behaviour were males working in small firms, adds further weight to concerns that the public interest is not always the key consideration, particularly in the case of the largest chartered accountancy firms. Parker (1994) considered the disciplinary actions of the Australian Society of Accountants (ASA) and the Institute of Chartered Accountants in Australia (ICAA). He argued that the relatively modest sanctions imposed and the tendency towards only minimal disclosure inferred that the profession wanted to be seen to be taking action, while neither unduly harming the miscreants nor the reputation of the profession. He concluded that, whatever the profession’s protestations about protecting the public interest, their disciplinary procedures indicated a concern with the private interest of accountants. In Canada, Bédard (2001) found that enforcement appeared to be more directed at protecting the private than the public interest, evidenced by the low number of complaints investigated, the lack of publication of decisions, and the greater likelihood of investigation and higher penalties for high notoriety cases that could adversely affect the profession’s reputation. Canning and O’Dwyer (2001, 2003, 2006) have confirmed the conclusions of the earlier US, Australian and Canadian studies in their examination of the disciplinary processes of the Institute of Chartered Accountants in Ireland (ICAI). They concluded that the ICAI processes were deficient regarding both accountability and transparency, and that the penalties imposed did not conform to expected standards of fairness. The operation of disciplinary procedures also appeared, to some extent at least, to be time-specific, reflecting the tensions and concerns expressed in the wider community, including the media, at any particular point (Canning and O’Dwyer, 2003). Employees of ICAI and lay members of the disciplinary committees displayed different emphases on the public–private interest nature of the disciplinary processes (Canning and O’Dwyer, 2006). Sikka (2001) suggested that other aspects of the disciplinary procedures of professional bodies also warranted attention, including the time taken to process cases, the independence or otherwise of the investigators and whether the procedures were in accordance with the UK’s Human Rights Act 1998 requirement for a fair trial. Thus, self-regulation has been criticised for producing a system in which some complaints have not been accorded sufficient attention, penalties have been inadequate, there has been a lack of transparency and independence, undue delay in processing cases and concerns that the procedures might not constitute a fair trial. Such criticisms have led to calls for an independent regulator and more openness in the accountancy profession (Mitchell et al., 1998; Cousins et al., 2000; Mitchell and Sikka, 2002). The legal system provides some scope for redress if complainants can organise themselves to work together in order to raise a challenge and provided that they can secure the necessary funds to mount a case (Mitchell and Sikka, 2004). However, individuals, such as small-scale investors, will find it difficult to challenge the large accountancy firms over perceived audit failures, particularly now that many of these accountancy firms operate as limited liability partnerships and have sought to further reduce their liability (Cousins et al., 2004) in a system in which they do not owe a duty of care to individual stakeholders (Dunn and Sikka, 1999). UK case law has held that professionals, including accountants, only owe a duty to third parties in limited circumstances. While the general principle applied in UK law is that one must take reasonable care to avoid acts or omissions that could

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reasonably be foreseen as likely to injure one’s neighbour5 , the case of Caparo Industries plc v Dickman6 established that for one party to owe a duty of care to another, the following must be established: that loss to the claimant was a reasonably foreseeable consequence of the defendant’s conduct; that there was sufficient proximity in the relationship between the parties; and that in all the circumstances it is fair, just and reasonable to impose a duty of care on the defendant towards the claimant. The ability of auditors to limit their liability is now enshrined in sections 532–538 of the UK’s Companies Act 2006 which states that auditors are able to negotiate with companies whose accounts they are auditing to limit liability by contract to an amount that is “fair and reasonable in all the circumstances”. Limitation of liability has also been endorsed by the European Union (FRC, 2011). The combined effect is that members of the public who do not have a very specific and direct connection with a professional firm will be unable to hold such firms liable for actions which members of the public may feel have caused them harm. This is particularly significant here because professional bodies claim to act in the public interest but legal precedent places limits on the power of members of the public to protect that interest. More broadly, it might be expected that the state would play a part in creating an environment where discipline would be effective. However, the cumbersome mechanisms of state, coupled with unclear demarcations between the responsibilities of various government departments, public offices and accountancy bodies results in issues being delayed at best and ignored at worst, as was evidenced by the slow progress made to address money laundering in the UK (Mitchell et al., 1998). Legislation has conferred an effective monopoly on auditors (Dunn and Sikka, 1999) and insolvency practitioners (Cousins et al., 2000) under which accountancy firms have considerably greater power and influence than individual clients or other stakeholders. The disciplinary proceedings of the professional bodies should offer the opportunity for redress but the closed nature of the system arguably acts as an impediment with trial by fellow members who also have an indirect interest in the outcome (Cousins et al., 2000). The above review shows that disciplinary procedures, while being promoted by the accountancy professional bodies as evidence of their professional claim and responsibility to protect the public interest, have also acted to protect the interests of the profession. When ICAS modified its disciplinary procedures in 2004 in order to recognise human rights concerns, this added a new dimension to its disciplinary process. The changes represented an admission that the human rights of accountants should be respected. This paper argues that human rights are a subset of a wider discourse on rights. In response to the incorporation of a human rights framework, this paper now develops that logic by considering the rights, including human rights, of parties to the disciplinary process. 3. The incorporation of a (human) rights framework In arguing that human rights can be viewed as an extension of general rights’ discourse and that a more complete analysis of the rights of various parties to a complaint against an accountant can be used to illuminate the rights of the parties concerned, this section begins by discussing rights generally (and, where appropriate, associated obligations). Then, the specifically human aspect of human rights is examined. 3.1. The nature of rights To hold a right is often regarded as acknowledging a reciprocal obligation to the society that grants the right. It assumes that all right holders will treat others in conformity with the human rights standards of universality, dignity and equality, and will participate in, and contribute to, society (Chapman, 1996). There is a problem, however. The language of human rights stresses rights rather than obligations. Human rights’ instruments do not always define clearly who is obligated to ensure enforcement of rights (Nickel, 1993). People often talk of their rights but these can set one person in conflict with another. For example, one person’s belief in the right to life will conflict with another’s belief in the right to choose an abortion or euthanasia. The claim to a right requires the balancing of conflicting claims in order to decide which claims have priority (Doherty, 2001). Rights need not always be good or admirable. Rights therefore are independent of welfare. In asserting a right to act, a party makes no claim about the desirability of his/her actions but simply asserts an entitlement (Simmonds, 2002). The nature of rights is one of the most disputed issues in the field of jurisprudence and several distinct traditions can be discerned. While the work of a wide range of authors could be used to form a theoretical framework for this paper, the work of Wesley Newcomb Hohfeld (1879–1918) has been selected as his now widely held view of rights is intuitively appealing in its argument that, for every right that one has, there will be a corresponding duty. Hohfeld’s work (1913, 1917) has come to be regarded as a seminal contribution in the analysis of rights. As a normative theory, it provides a framework or conceptual basis for rights discourse that has inspired subsequent work on rights. Rainbolt (2006, p. 1) argues that, “The traditional place to begin research on rights is with Hohfeld” while Crowe (2009, p. 86) argues that, “The basic conceptual framework for rights analysis is furnished by Wesley Newcomb Hohfeld’s seminal observation that rights entail correlative duties”. The

5 Donoghue v Stevenson [1932] AC 562 (HL Sc) Lord Atkin identified a neighbour as someone who was so closely and directly affected by the act that one ought to have them in contemplation as being so affected when directing one’s mind to the acts or omissions in question. 6 Caparo Industries plc v Dickman [1990] 2 AC 605.

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influence of Hohfeld’s terminology can be seen in discourse as wide-ranging as professional duties and rights7 , citizenship8 and the law of employment9 . While more modern philosophers, such as Habermas (1996) and Rorty (1998), have discussed rights, including human rights, and could therefore have been used as the framework in this paper, Hohfeld’s work provides the first comprehensive analysis from which other works have been developed, and its terminology has entered both the public and professional discourse. For these reasons, Hohfeld’s work is used. However, this paper recognises that Hohfeld’s work has been criticised. Therefore, after discussing Hohfeld’s ideas in more detail, the criticisms of Hohfeld that have been put forward by other philosophers will be discussed before applying his framework to the accountancy profession. Hohfeld distinguished between four aspects of rights: claim-rights, privileges, powers and immunities. Hohfeldian analysis generally applies to pairs of individuals or groups. These pairing are not immutable, however, as parliament could pass a law depriving one or other party of a privilege, power or similar state. Features of the ICAS disciplinary procedures can be illuminated by reference to these four aspects of rights. The most readily recognised aspect of rights is the claim-right, where one party has a right and another has a corresponding duty (e.g. If X has a claim-right than Y should pay him £100, Y has a duty to pay X £100). Hence, if an errant ICAS member has a right to a fair disciplinary hearing, ICAS has a duty to provide a mechanism to enable a fair hearing. Similarly, a client has a right to expect a professional to exercise due skill, care and competence in the execution of his duties and the professional has a corresponding duty to exercise such skill, care and competence. A privilege, sometimes known as a liberty, is a weaker aspect of a right. For example, if someone claimed a right to smoke, this would in fact be a privilege or liberty as the correlative is that another party has no right (e.g. X has a liberty, Y has no corresponding duty not to prevent X’s exercise of liberty). In relation to ICAS, the public interest requires that clients of an ICAS member have a ‘right’ to complain about sub-standard work. However, the duties of the individual accountant and ICAS are directed towards the client and not the public interest. For example, as there is no right to claim compensation through the disciplinary process, neither the individual accountant nor ICAS have a duty to provide compensation despite the fact that such compensation might be in the public interest. Therefore the public’s interest is a privilege rather than a claim-right. A power, and correlative liability, can be expressed as a ‘right’ to alter claim-rights or privileges (e.g. X has the power to alter legal rights and duties by, for example, concluding a contract or writing a will and Y is liable to have his legal situation altered by such exercise of power). ICAS has such a power to make changes to its disciplinary procedures which affect the claim-rights and privileges of the various parties to the disciplinary process. The final aspect of ‘rights’ is the immunity, and correlative disability (e.g. where X has an immunity, this is because Y has no power to force something (i.e. he has a disability). For example, if a person’s legal relations are set out and immovable, such as where someone cannot be forced to incriminate him/herself, a court has no power to override this immunity. Effectively, a disability is the absence of power to do something or, as Pound (2000) prefers, the inability to do something. Hence, ICAS has a disability in that it has no power to contravene the HRA 1998 and cannot have a disciplinary process that violates the Act. Although intuitively appealing, the idea of four correlatives has been criticised. Hohfeld’s determination to have an “artificial symmetry” (Stone, 1964, p. 158) with rights and correlatives, has been termed a “pseudo-conception” (Pound, 2000, p. 80) since disability, for example, represents an absence of a power, rather than a positive action. The correlatives also obscure the fact that duties are imposed in order to protect rights: the existence of a right is a justifying reason for imposing a duty (MacCormick, 1982; Raz, 1986). Raz and MacCormick argue that the claim that rights are strictly correlative implies that when X has a right, Y already has a duty, thus the rights cannot be a reason for imposing a duty on Y. However, they contend that rights can be protected in ways other than by the imposition of duties, for example by the conferment of Hohfeldian privileges or powers, or by the imposition of Hohfeldian disabilities on other persons. A follower of Hohfeld would insist that, when we speak about rights we should make it clear which of the four types we mean but this is made more difficult because of Hohfeld’s failure to specify exactly what in fact a right is (Riddall, 1999). For Raz (1986) and MacCormick (1982), rights can be considered without this kind of discrimination because, at their most basic level, rights are the justifying reasons for the creation of Hohfeldian claim-rights, liberties, powers and immunities. Hence, they claim that Hohfeld is wrong to treat the word ‘right’ as being ambiguous between four different notions, each of which is a correlative of either a duty, a no-right, a liability or a disability. The true situation according to Raz and MacCormick is that a right is a weighty interest which may be protected, in appropriate circumstances, by an array of Hohfeldian claim-rights, liberties, powers and immunities (Simmonds, 2002). Hence, while views differ in detail, this paper’s examination of ‘rights’ in relation to the ICAS disciplinary procedures takes into account all rights rather than simply focusing on claim-rights and focuses on the interests that the various rights aim to protect. There is a continuing debate between those who argue that rights are linked to freedom or the will of the individual and those who see rights as linked with wider and more general interests (Radlett, 2000). Hart (1955) argued that rights are

7 For example, the General Medical Council sets out the duties of a doctor (http://www.gmc-uk.org/guidance/good medical practice/duties of a doctor.asp) while the National Health Service Constitution (2009) (available at http://www.dh.gov.uk) sets out the rights of patients. 8 The UK government sets out rights and responsibilities of UK citizens at http://www.direct.gov.uk/en/Governmentcitizensandrights/ Yourrightsandresponsibilities/index.htm. 9 See http://www.direct.gov.uk/en/Employment/Employees/EmploymentContractsAndConditions/DG 10028079.

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expressed as legal rules and that they do not exist independently of these rules. Rights are claims in the sense that potential claimants have the right to become actual claimants by choosing to exercise their right to launch legal or disciplinary proceedings. Dworkin (1986) uses the term ‘principle’ to describe rights, a principle being a standard to be observed because it is a requirement of justice or fairness, not because it will advance or secure an economic, political or social situation. Dworkin contends that a balance must be struck between individual rights and community goals such that if we are to respect individual rights, these must not be capable of being squashed by some competing community goal. The central question in any litigation is whether the plaintiff has a right to win, not whether the community’s interests should be satisfied (Wacks, 1999). If the accountancy profession is regarded as a community, then it becomes clear that the profession’s interests should not squash individual rights. This raises questions about the power of the various parties to disciplinary proceedings. Dworkin (1986) believed fundamentally that people are equal as human beings although equality and freedom have to be balanced, with each person’s freedom limited to the extent that one person’s exercise of freedom limits the freedom of another (Doherty, 2001). Dworkin recognises that some rights are seen as more powerful than others, but they all must be able to override utility welfare or they will cease to be called rights at all (Radlett, 2000). Rawls (1972) similarly sets out principles based on equal rights to fundamental liberties such as freedom of speech, assembly and thought, and equal access to offices and positions, with inequalities only justified in order to benefit the least advantaged in society. By promoting the well-being of the least advantaged, Rawls recognised the unequal power exerted by different individuals and institutions, and sought to ensure that the least advantaged received some protection from the power of others. Rawls argues that rights and duties flow from these principles. Hence, the discussion of the ICAS disciplinary procedures later in this paper will recognise the differential power held by the various parties, including the accountant, the professional body and the client. This focuses attention on the possible contradiction between the individualistic nature of morality and the collectivist nature of law (Palmer Olsen and Toddington, 1999) which requires that decisions be taken about whether the individual or the community should have priority in rights, given that recognising priority to one might hamper another (Riddall, 1999). Habermas put forward three paradigms of law – formal law, materialised law and proceduralist law (Habermas, 1998). Formal law, market based and liberal, is concerned with the individual. The right of each person to do as he or she pleases within the limits of general laws is legitimate only under the condition that these laws guarantee equal treatment. Materialised law is more managed and paternalistic. Habermas identifies a trend evident in all modern societies from formal to materialised law but criticises both paradigms for sharing the productivist image of a capitalist industrial society. Instead, he suggests a proceduralist legal paradigm under which the law is neither structured by the measure of individual legal protection for private autonomous market participants nor by the measure of comprehensive social security for the clients of welfare-state bureaucracies. Habermas (1998, p. 18) argues that: in the proceduralist paradigm of law, the vacant places of the economic man or welfare-client are occupied by a public of citizens who participate in political communication in order to articulate their wants and needs, and to give voice to their violated interests, and, above all, to clarify and settle the contested standards and criteria according to which equals are treated equally and unequals are treated unequally. However, there are limits to Habermas’ procedural justice. Rosenfeld (1998) argues that Habermas needs to embrace contestable normative assumptions in order to contribute to the resolution of conflicts. He says that, as conceived by Habermas, communicative action requires that each participant has an equal opportunity to present claims for consideration and a universal commitment to be swayed only by the force of the better argument. Thus the only legitimate normative regulations under Habermas’ proceduralist paradigm would be those which have been assented to by all of the participants. Habermas says that assent could be based on bargaining and compromise, as well as consensus. However, there are impediments here as bargaining and compromise may favour some interests over others, particularly given the unequal bargaining power of the parties to the disciplinary process discussed later in this paper. In summary, while conceptions of rights differ in detail, and aspects of Hohfeld’s work have been criticised, unifying features of the various theoretical positions are their connection with morality and the relationship between individual rights, their effect on others and their implications for the wider community. All theoretical positions recognise this reciprocal relationship, with rights affecting others in addition to the right-holder. Precisely because Hohfeld’s work shows the reciprocity inherent in the holding of a right, it provides a useful framework for examining the various rights’ relationships within the ICAS disciplinary procedures. Recognising the criticisms of Hohfeld’s work, this paper regards rights as multifaceted and not existing in a vacuum, hence the discussion of the ‘rights’ (including human rights) inherent in the ICAS disciplinary process will recognise the various aspects of rights and will view them in totality, bearing in mind the differential power of the various parties. Having discussed rights generally, the nature of human rights is now examined. 3.2. Human rights Although the term human rights only became widely used after the second world war, they are a logical extension of the traditional natural rights of man, natural because they are grounded in human nature and because their existence is independent of any artificial social institutions such as positive law (Wellman, 1999). The first generation of human rights consisted of civil and political rights, such as the right to a fair trial or the right to vote (Marks, 1981). Now, they are more widespread, reflecting historical, societal and political circumstances (Chapman, 1996). Douzinas (2000) contends

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that human rights are political constructs that were initially linked with specific class interests and were weapons in the fight of the rising bourgeoisie against despotic power and static social organisation. This raises questions about how power is exercised and how it can be used to challenge oppression. It is perhaps ironic that an argument based on human rights was used by ICAS members who were the subject of complaint rather than by any potential victims of ICAS members’ wrongdoing. Thus human rights apply to all parties whatever their actions. Human rights are generally agreed not to be absolute as they may sometimes conflict (Gewirth, 1981). However, there is debate as to whether they are fundamentally individual moral rights (Wellman, 2002), morally justified civil rights that one possesses as a citizen, being dependent on social practices (Martin, 1980) or an amalgam of these two views (morally validated claims to some benefit but also requiring legal recognition and promotion by government). An alternative conception roots them in a social justice model (Beitz, 1979), where human rights are entitlements to the satisfaction of various human interests that would be guaranteed to members of a group by principles of social justice appropriate to that group. This model of human rights allows for the recognition of rights that belong to persons, not as persons, but because of the social relations in which they stand, and they can envisage a broader range of rights. The increasing discourse on human rights has made the public more sensitive to moral considerations, resulting in a rise in the amount of litigation (Wellman, 1978, 1999). While this has had negative effects (such as over-burdening the legal system so that it is slow; in encouraging dogmatism and in suggesting that those who disagree are somehow less worthy and caring), the proliferation of rights has done more good than harm according to Wellman (1999). ICAS frustration that some potentially errant members were forcing a change in disciplinary procedure recognises the potentially negative effects. Underlying the European Convention on Human Rights (ECHR) is the principle of the equality of human worth so that discrimination is only acceptable to the extent that it is justified by reasonableness (Vlastos, 1962) and proportionality (Lenoble, 1998). Therefore, even though human rights concerns had been raised by errant members, ICAS had to address them and chose to justify their disciplinary changes positively by recognising the intuitive appeal of human rights’ discourse. The literature on human rights grounds them in human nature, regards them as being intrinsically linked to a person’s social relations but also views them as political constructs that simultaneously make a person sensitive to moral considerations. In all of this discussion, it should be remembered that human rights are as much about humans as about rights. Human rights construct humans. In other words, we are human because we are recognised as human, as a bearer of human rights (Douzinas, 2000). Human rights are rights to those things necessary for living as a person, which would include the right to a fair trial (Griffin, 2001). Maynard Adams (1988) argues that one cannot be a person without some concept of oneself as a person living under a moral imperative to live a life of one’s own that would stand justified under rational and moral criticism. Thus, personality is a natural, inalienable office defined by this moral responsibility. Any social office, such as being a parent or a judge, is defined by certain responsibilities that in turn ground rights to those conditions necessary for carrying out the responsibilities. Human rights stress humanity but this also implies a social function as humans inhabit societies. Human rights are possessed in relation to a community (Golding, 1968), shaped and defined by mutual commitment and responsibility (Chapman, 1996). Although vested in individuals, they are created by societies, recognising an ongoing social covenant linking members together and defining their respective claims against, and responsibilities to, one another. Rights’ language and the enumeration of specific rights are means by which members of modern societies, including members of subgroups within society (such as ICAS), clarify and express their common moral expectations and extend moral language to new social, moral and political realities. Therefore, being a member of a professional body can be viewed as a social office with particular responsibilities. This paper takes this view forward by assessing the various rights, and correlatives, of the parties involved in the professional accounting relationship with specific reference to the ICAS disciplinary procedures. 4. The UK accountancy profession’s disciplinary procedures 4.1. Public interest cases Until 1979, the UK profession was self-regulatory with each professional body operating its own disciplinary procedures, irrespective of whether the complaints raised concerns for the public interest or were more limited in scope. In 1979, following some high-profile financial scandals (Sikka, 1997), the Joint Disciplinary Scheme (JDS) was established by the Institute of Chartered Accountants in England and Wales (ICAEW), the Institute of Chartered Accountants of Scotland (ICAS) and the Association of Chartered Certified Accountants (ACCA). It was funded by these bodies, in proportion to their membership, with each individual member paying a levy to the JDS as part of their annual subscription10 . The scheme was established in order to investigate cases where questions of public concern arose in relation to the professional or business conduct, efficiency or competence of a member of ICAEW, ICAS or ACCA or a firm composed wholly or partly of members of these bodies. Public concern was not defined in either the constitutions of the three accountancy bodies or in the JDS itself. The clear intention, however, was for most disciplinary matters to be handled within the disciplinary processes of the professional bodies, with only the more serious public interest cases, such as financial mismanagement or audit deficiencies with resulting financial losses, being referred to the JDS (Chance, 1993). Therefore, the establishment of the JDS introduced a

10

In 2007, the ICAS levy ranged from £44 to £440 for various classes of individuals.

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two-tier disciplinary structure, although both tiers remained essentially self-regulatory and self-funded. The scheme has been criticised for being slow, under-resourced and incestuous, given that the investigators have generally been partners of chartered accountancy firms, whose firms were often themselves being investigated by the JDS (Sikka, 1997). The 1990s saw a trend towards a greater degree of independence within the disciplinary arrangements of a number of UK professions, including medicine, the law and the police. Following government consultation on proposals to establish an independent framework for regulation of the accountancy profession, the Accountancy Foundation and the Financial Reporting Council (FRC) were established in 2001. The FRC’s website includes the strapline that the FRC is the UK’s independent regulator responsible for “promoting confidence in corporate reporting and governance” and the principal independent regulator of the accountancy and actuarial professions in the UK (FRC, 2009a). The FRC is funded by the accountancy and actuarial professions, major user groups and, in relation to its accountancy and audit responsibilities, the UK government. The FRC exercises its functions through six operating bodies: the Accounting Standards Board, the Auditing Practices Board, the Board for Actuarial Standards, the Professional Oversight Board (POB), the Financial Reporting Review Panel and the Accountancy and Actuarial Discipline Board (AADB). Operational responsibility for disciplinary matters now falls to the AADB, formerly known as the Accountancy Investigation and Discipline Board (AIDB) which was renamed in 2007, reflecting its expanded role. The JDS continued to process disciplinary cases already underway but from 1 January 2010 only the AADB has operated. The AADB is independent, investigating and disciplining actuaries and members of the Chartered Institute of Management Accountants (CIMA), the Chartered Institute of Public Finance and Accountancy (CIPFA) and the Institute of Chartered Accountants in Ireland (ICAI) as well as the three members of the previous JDS (ACCA, ICAEW and ICAS). In 2005, POB reported on its review of the complaints and disciplinary procedures of the major UK accountancy bodies. It concluded that the essentially self-regulatory role played by these bodies should continue. It rejected the idea of appointing an Ombudsman to investigate complaints as a last resort, a system recently introduced for the legal profession. However, some changes to current procedures were suggested, including open hearings in the interests of transparency, and giving accountancy bodies the power to direct members to reimburse the reasonable costs to a complainant of bringing an issue of misconduct to the attention of the body, if misconduct is proven (POBA, 2005). There are a number of legal safeguards incorporated into the AADB scheme such as provision for legal representation, open hearings, publication of outcomes and the use of both accounting and non-accounting staff including those with legal qualifications (FRC, 2009b). Disciplinary schemes are expensive to operate. ICAS members working in public practice paid a levy for the JDS on a sliding scale depending upon the number of partners in the firm, ranging from £0 to £513 per year. Recognising the increasing costs associated with the AABD, ICAS introduced a £50 levy in 2010 (2011 = £40; 2012 = £35) on all UK members in employment to cover the cost of cases involving ICAS members currently being considered by the AADB. Like its predecessor, the JDS, the AADB deals with cases affecting the public interest. Other cases continue to be dealt with by individual professional bodies. The regulatory and disciplinary framework of one UK accountancy body, ICAS, is now examined.

4.2. Non public interest cases – the case of ICAS ICAS is the oldest professional body of accountants in the world, dating from 1854, with the establishment of the Edinburgh Society of Accountants. It had 18,842 members as at 31 December 2010, making it considerably smaller than ACCA, CIMA or ICAEW, with subscriptions and operating income of just over £15m in the year to 31 December 2010 and a surplus on ordinary activities after taxation of £0.855m11 . Therefore, it has fewer financial resources available to it than other accountancy bodies for regulation/compliance activities and for hiring legal counsel if its disciplinary processes are challenged in court. Internal ICAS disciplinary procedures are funded by the payment of a levy by members who hold a practising certificate into a contingency fund against the future costs to ICAS or the AADB12 of investigating and prosecuting disciplinary cases. This cost is in addition to the levy paid by all members to cover AABD costs. The ICAS disciplinary procedures were amended in 2004. The costs to ICAS of disciplinary action are illustrated by disclosures in the Annual Review and Summary Financial Statements of ICAS for 2005 (ICAS, 2006a). These show that 68 disciplinary complaints were received in 2004, falling to 56 in 2005, of which 11 and 7 respectively were upheld. The costs of disciplinary action amounted to £610,000 in 2004 (£283,000 in 2005). When compared with the amount of ICAS’ operating surplus, the materiality of the disciplinary costs is revealed. In 2004, the operating surplus before disciplinary costs was £980,000. After the disciplinary costs of £610,000, the surplus fell to £370,000. Thus, disciplinary costs amounted to 62% of the total operating surplus because of a small number of cases where expensive legal counsel had been required to debate fair trial issues. 2004 was also the year in which the pension deficit on the ICAS final-salary pension scheme peaked at just under £4.4m. It is hardly surprising, therefore, that ICAS was acutely focused on any cost reduction at that time. In order to contextualise the new procedures, the old procedures and reasons for change are now discussed.

11 Subscriptions and operating income for year ended 31 December 2010 amounted to £15.556m (2009 = £14.834m), resulting in a surplus on ordinary activities after tax of £0.855m (2009 = £1.141m). 12 In 2010, total income from regulation and compliance subscriptions was £1.617m. An individual practicing certificate cost £465, including the disciplinary contingency fee levy.

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4.3. The old ICAS procedure, pre-2004 Complaints could be made without cost against members of ICAS if the member being complained about had failed to act with integrity, objectivity, competence, due skill, care, diligence and expedition, or with courtesy (ICAS, 2001). If a problem could not be resolved by the parties themselves, members of the public could write to ICAS, specifying the grounds for complaint. Certain matters were specifically excluded from the complaints’ process, such as fee disputes and compensation for loss. Many complaints were resolved by conciliation. If this was not possible, ICAS could refer the complaint to its Investigation Committee. This committee comprised both chartered accountants and lay members, the latter, according to the ICAS guidance, being there to ensure that the committee dealt fairly and even-handedly with every complaint (ICAS, 2001). The Investigation Committee used evidence, such as statements, letters, documentation, accounts and meetings with relevant parties to form a view. The complaint could either be dismissed or made out. In the latter case, the committee had to decide whether disciplinary action was required against the member. If so, the matter was passed to the Discipline Committee. If this committee was also satisfied that the complaint had been made out, then a variety of sanctions could be applied, ranging from admonition to expulsion from membership and/or a fine. A member could appeal the finding or sanction (ICAS, 2001). If the person bringing the complaint was not satisfied with the findings of the Investigation Committee, a request could be made for the case to be reviewed by an Independent Examiner who could request that the Investigation Committee re-open the case (ICAS, 2001). The old procedures did adhere to some, albeit limited, pivotal rules of natural justice, namely that the accused was entitled to a specific allegation, and had an opportunity to answer that allegation. In addition there had been efforts to separate regulation and discipline with regulatory committees considering competence and discipline committees considering integrity. Positive features of the former disciplinary system were that an appeal mechanism existed and that the system did not involve members paying costs. The right to access to justice irrespective of financial circumstances and the right to appeal are long-held and widely-accepted tenets of the UK’s justice system. However, the disciplinary system previously in place was essentially an internal process. Although there were lay (public interest) members on the Investigation Committee and an Independent Examiner could be appointed, it should be remembered that these were in a minority and were ICAS-appointees, most of the participants in the process being other chartered accountants. Thus, the system was essentially a self-regulatory one, not unlike the system used until recently in other professional fields such as medicine and law. Selfregulation can, however, be viewed as being secretive and self-interested and, as previously mentioned, was not considered to be sustainable within the medical and legal professions.

4.4. Reasons for change A small number of members, who had been the subject of recent complaint, argued that the previous ICAS system breached their right to a fair trial as enshrined in the HRA 1998 because of its lack of independence and failure to offer public hearings. Preston et al. (1995), in their review of ethical code changes in the US, show that ethical guidance changes over time, reflecting varying circumstances within the disciplinary area and wider culture. The HRA 1998 is arguably one of the most significant developments in recent UK law (Palmer, 2000), particularly given that it is not regarded as a separate stream of law but rather something that permeates all legal areas (Brown, 2000). The HRA 1998 has its roots in the Council of Europe’s European Convention for the Protection of Human Rights and Fundamental Freedoms (Baker, 1998). Despite the UK government being heavily involved in the drafting of the convention, signing it in 1950 and being the first country to ratify it in 1951, it was not incorporated into UK law until 1998. One of the rights guaranteed by the convention, and incorporated into section 1 of the Act, is the right to a fair trial, regarded by The European Court of Human Rights as one of the ‘fundamental principles of any democratic society’13 . The right to a fair trial incorporates the entitlement to a fair and public hearing, which should be held within a reasonable time, by an independent and impartial tribunal. The right to a public hearing can be waived provided both parties agree (Baker, 1998)14 . In general, however, it is expected that the hearing will be conducted in public with the judgement being pronounced publicly in order to avoid secrecy and unaccountability (Webster, 2000)15 . The reasonableness of the period depends upon all of the circumstances of the case and there is no absolute period (Baker, 1998). A delay would not automatically amount to a breach provided an adequate explanation was given (Christie, 2001).16 Even if a particular tribunal lacks any of the elements required by Article 6, it is sufficient if the applicant has access to an independent judicial body with full jurisdictional control over the prior procedure, and which itself provides the Article 6 guarantees (Baker, 1998).17 Thus, the availability of judicial review and

13

Sutter v Switzerland (1984) Series A, No. 74, 6 E.H.R.R. 272, para 26. Håkansson v Sweden (1990) Series A, No. 171, 13 E.H.R.R. 1. For example, an employment tribunal held in chambers with a security lock on the door and a notice saying that there was no admittance to the public was held not to constitute a public hearing (Storer v British Gas plc [2000] 2 All ER 440). 16 Gibson v H M Advocate, http://www.scotcourts.gov.uk; Hendry v H M Advocate, http://www.scotcourts.gov.uk; Mitchell v H M Advocate, http://www.scotcourts.gov.uk. 17 Bryan v UK (1995) Series A, No. 335-A, 21 E.H.R.R. 342; Preiss v General Dental Council [2001] 1 WLR 1926. 14 15

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other remedies may well be sufficient to cure any original deficiency18 . Essentially, the effect of case law is that Article 6 does not require each stage of disciplinary proceedings to comply with all of the components of a fair trial provided that there is a right of appeal from a stage in the process that does not comply to one that does. Section 6(1) of the Act provides that it is unlawful for a public authority to act in a way which is incompatible with a convention right. Section 6(3) states that a ‘public authority’ includes a court, tribunal and ‘any person certain of whose functions are functions of a public nature’. This is thought to include professional bodies (Bamforth, 1999). Although the status of the accountancy professional bodies as public authorities has not been tested in court, a disciplinary tribunal established by a medical association operating independently of the state, with which all doctors other than those employed in the armed services were required to register in order to practice, has been held to be a public authority19 , as has the Law Society of Scotland.20 It is likely therefore, and is certainly not disputed by ICAS, that accountancy professional bodies are ‘public authorities’. Given their self-regulatory history, professional bodies have been viewed in the UK as being independent of state. Classifying them as public authorities potentially changes the nature of their relationship with the state, recognising their public role but bringing with it the responsibility to adhere to the HRA 1998, requiring them to act, not as they themselves think fit, but within a legal framework. In this respect, the HRA 1998 continues the shift from self-regulation to self-regulation within a statutory framework begun by previous company, financial services and insolvency legislation. However, while the designation of professional bodies as public authorities may alter the nature of their relationship with the state to some extent, there are limitations on the effect of this relationship. Like many other professional bodies, ICAS does not have a mechanism for its members to pay financial compensation to ‘wronged’ clients. The only means of securing compensation is for clients to sue the accountants in a court of law. Therefore, the designation as a public authority is not analogous to assuming full state responsibilities and hence professional bodies remain largely protected from financial exposure caused by the wrongdoing of members. The HRA 1998 raises a number of issues for the accountancy profession’s disciplinary procedures. First, there needs to be the appearance of independence.21 Independence implies independence from the executive and the parties. The manner and duration of appointment of the tribunal members, the existence of guarantees against outside pressures and whether the body presents the appearance of independence have all been stated as being factors relating to the independence of the tribunal.22 23 24 The courts have been unwilling to consider procedures to be independent and impartial where there is considerable overlap in the membership or functions of committees.25 Where members of a professional body form the majority of people investigating and/or disciplining fellow members then, whatever the outcome of proceedings, there is a perception of a lack of independence. Second, the fact that publicity is rarely given to the outcome of proceedings can add to the feeling that justice may not be being done and is not seen to be done. Third, by classifying professional bodies as public authorities, the public interest element of professions is indirectly incorporated into law, yet the accounting literature suggests that the public interest, although prominent in professional rhetoric, is generally subservient to the profession’s private interest in practice.

4.5. The new ICAS procedure Six years after the HRA 1998 was passed, ICAS modified its disciplinary procedures. Whether ICAS would have made amendments if legal action had not been taken on human rights grounds by members is moot but the timing of change

18 Albert and Le Compte v Belgium (1983) Series A, No. 58, 5 E.H.R.R. 533; W v UK (1987) Series A, No. 121, 10 E.H.R.R. 29; Zumtobel V Austria (1993) Series A, No. 268-A, 17 E.H.R.R. 116. 19 Le Compte, Van Leuven and De Meyere v Belgium (1981) Series A, No. 43, 4 E.H.R.R. 1. 20 John Mark Sutherland Fisher v The Law Society of Scotland. Opinion of the Court of Session, Inner House, Extra Division, http://www.scotcourts.gov.uk/opinionsv/p699 01.html. 21 Findlay v UK 1997 24 E.H.R.R. 221. 22 Campbell and Fell v UK (1984) Series A, No. 80, 7 E.H.R.R. 165. 23 The courts martial system, for example, has been held not to be independent and impartial where the convening officer brought the charges, selected the members of the court, chose the officers for the prosecution and defence and ensured witnesses attended (Findlay v UK (1997) 24 E.H.R.R. 221). 24 In one of the first cases to be brought in Scotland following the enactment of the HRA 1998, a decision was challenged on the grounds that it breached Article 6 since it was not made by an independent tribunal (Webster, 1999). The Appeal Court held that temporary sheriffs were not independent because they had no security of tenure and could be appointed and dismissed by the Lord Advocate (PF, Linlithgow v Hugh Latta Starrs and James Wilson Chalmers, http://www.scotcourts.gov.uk). There was no suggestion that the temporary sheriffs might not be impartial; debate hinged solely on whether they were independent. 25 A matron of a nursing home in Glasgow who was found guilty of misconduct claimed that her hearing before the Professional Conduct Committee of the UK Central Council for Nursing, Midwifery and Health Visiting was in breach of Article 6 as it was not before an independent and impartial tribunal (Tehrani v UKCC (2001) IRLR 208). The UK Council had a Professional Conduct Committee (an investigative committee) and a Preliminary Proceedings Committee (to hear cases) but the same individuals sat on both committees, although they did not act in both capacities in any one case. Although not asked to adjudicate directly on the issue, Lord Mackay of Drumadoon indicated that he did not regard such a situation as constituting an independent and impartial tribunal. This case was cited in Preiss v General Dental Council [2001] 1 WLR 1926 involving the General Dental Council where the person who had acted as the preliminary screener had been the President of the General Dental Council and had also chaired the Professional Conduct Committee hearing. Additionally, all of the members of the Professional Conduct Committee were involved in making the professional and disciplinary rules and policies for the dental profession.

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suggests that it was legal action by members rather than the HRA 1998 per se that was the stimulus for change. The ICAS Council argued that the old procedure required amendment (ICAS, 2003, p. 9): A combination of factors, mainly the serious misconduct on the part of the few affecting the interests of the many, has led to spiralling investigation and discipline costs for ICAS. ICAS is continuing to investigate how it can reduce the cost of discipline without damaging the effectiveness and efficiency of the disciplinary processes. Each of the existing lines of endeavour to contain costs – persuading Government to grant powers to approach the Court for compulsion of evidence, alternative dispute resolution procedures and the use of regulatory channels for competence based cases – will continue to be pursued. In order to address the concerns about the increasing cost of operating the disciplinary system and human rights’ compliance, a wide-ranging set of rule changes were proposed (ICAS, 2004) and subsequently effected, of which the following are relevant here. First, ICAS wanted to encourage the settlement of client complaints through a new duty on firms to investigate complaints against themselves, thus reserving its disciplinary procedures for cases where this alternative was not deemed to be satisfactory. Second, the role of the so-called public interest member in the disciplinary process has been strengthened and members now have a right to a public hearing at the Discipline Committee stage. Third, the cost of investigations no longer falls on the membership of ICAS as a whole but rather on the member being complained about. Under the new procedures, the ICAS Council appoints an Investigation and Professional Conduct Enforcement Committee (IPCEC), a Discipline Panel and an Appeal Panel. IPCEC comprises a chair, vice-chair and no fewer than nine ICAS members and no fewer than nine public interest members. The quorum is defined as three Committee members, including at least one ICAS member and one public interest member. The Discipline Panel and Appeal Panel each comprise no fewer than six ICAS members, no fewer than six public interest members and no fewer than four legally qualified persons, one of whom acts as the Panel Chair. In each case, the quorum is defined as three Panel members including one ICAS member, one public interest member and one legally qualified person. No member can serve on more than one of these three committees/panels at the same time. Importantly, the above committees and panels are not subject to the direction or guidance of the ICAS Council or of any other person. The strengthening of the lay membership is similar to changes seen in the UK medical and legal professions. As originally implemented, the new rules permitted the member being complained about to request that the hearing of the formal complaint be conducted in public except where Article 6 of the ECHR permitted otherwise. Where hearings took place in public, any ensuing appeal was also to be held in public. Initially, however, ICAS did not advocate public hearings. In its response to the 2005 POBA review of complaints and discipline within the accountancy profession, ICAS stated that it did not believe that open hearings were justifiable since ICAS did not have the power to compel non-accountant witnesses to attend (ICAS, 2005). However, the other major UK accountancy bodies use open hearings, as does the AADB. Therefore the ICAS membership approved a rule change in October 2009 which permitted the Discipline Tribunal to hold all disciplinary hearings in public26 . This rule change was approved by the Privy Council in October 2010. It further decided that all decisions of the Discipline Tribunal should be published from 1 January 2010. While ICAS did not consider the view expressed in 2005 to be in breach of human rights concerns, it nonetheless felt that a change of rule was justified on grounds of openness and transparency. In reality, the fact that open hearings are now widespread within other UK accountancy bodies meant that ICAS had little choice but to bring its rules into line in order to avoid accusations of secrecy and predominance of its private interest. Cost appears to have been a major consideration in driving the ICAS changes. Although the number of instances where members claimed that their right to a fair trial had been breached was small, the legal costs involved in defending claims proved to be particularly expensive for ICAS, given its small membership base. ICAS has introduced advance costs orders for the more serious cases, which allow the Convener of IPCEC to require the member under investigation to bear the costs of that investigation, even before the case may have proceeded to the Discipline Tribunal (ICAS, 2007b). This resulted in the total for fines and costs orders increasing from £4750 in 2004 to £50,075 in the 18 months to 30 June 2007 (ICAS, 2007b).27 A search of the ICAS website revealed that the largest fine and costs order processed in respect of a single complaint since the new system began were £35,000 and £40,000 respectively in 2008 (ICAS, 2008a). The new procedure has altered the sanctions that can be imposed by the Discipline Panel. The sanction of censure has been removed and severe censure has been replaced by severe reprimand. The sanctions, in decreasing order of seriousness, are: expulsion, exclusion from membership, suspension, withdrawal of practising certificate, ineligibility for practising certificate, withdrawal of insolvency permit or entitlement held under the Audit Regulations, severe reprimand, reprimand, severe admonition and the imposition of a fine. A review of cases on the ICAS website revealed one expulsion, one exclusion for a three-year period, one withdrawal of a practising certificate, five cases of severe reprimand or censure, one member subject to annual quality review for a three-year period and seven fines imposed, ranging from £5000 to £35,000 since

26 Both the member who is subject to a hearing and ICAS will be able to apply to the Discipline Tribunal requesting that the public and press be excluded from part or all of the hearing, in circumstances permitted under Article 6 of the Convention on Human Rights e.g. situations where the member’s health or well-being was being discussed or there was a risk that confidential client information might be released. The first open hearings before the Disciplinary Tribunal are likely to take place in2011. 27 The amounts for fines and costs orders are not disclosed separately in the report.

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Fig. 1. Representation of rights and duties in relation to professional discipline.

August 2006. Therefore, most sanctions imposed have been for the lesser sanctions of reprimand or the previous sanction of censure. Until the end of 2009, only sanctions from severe reprimand upwards carried attendant publicity (ICAS, 2007b) but, since 2010, all sanctions have been published. An appeals procedure exists if a client is unsatisfied with a decision of IPCEC. There is no Ombudsman, despite calls in the literature (POBA, 2005) but an application can be made for a review by the Independent Examiner, who is neither an ICAS member nor employee. This procedure is likely to be little used, however, given that a review must be based on one of the following grounds. First, fresh evidence of a material nature, as judged by the Independent Examiner, has to have been received since intimation of the decision. Second, there must be reason to suspect that a member of IPCEC who took part in the decision lacked independence. Third, the decision of IPCEC has to be one that could not reasonably have been arrived at upon due consideration of the facts and matters before it.

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The new procedure strengthened the role of public interest members, although these are still appointed and paid by ICAS and therefore cannot be considered to be totally independent. Public hearings, though not encouraged originally, are now provided. The procedure has inserted an additional layer by bringing in a Queen’s Counsel (QC) as an independent chair at an early stage in the proceedings in order to ensure that the member bears the costs of the enquiry. The use of a QC is significant as QCs are the UK’s most senior lawyers whose presence provides a public perception of due process and impartiality. ICAS considered that the old procedure leant too greatly in the accused’s favour since ICAS rather than the accused bore the costs of the investigation. The new procedure was therefore designed to invert the effect of the system. While benefitting the majority of ICAS members, this change has discarded one of the fundamental principles of UK justice, namely that financial circumstances should not preclude access to the legal process. While ICAS maintains that costs would not be applied where the member could not afford to pay them, nonetheless, the effect of the rule is that accountants could be asked to pay for the costs of investigation without reimbursement even if the case against them is not made out, which contravenes generally-held views of natural justice. 5. Implications for the accountancy profession The previous section has shown that the changes in ICAS’s disciplinary procedures were justified by ICAS on human rights’ grounds, although other factors such as cost also seem to have motivated the rule changes. In the remainder of this paper, we argue that ICAS has used the rhetoric of human rights but that the ICAS changes adopt a narrow view of the nature of human rights, representing a missed opportunity to strengthen its declared public interest functions. As discussed earlier, it is generally accepted that professional bodies are public authorities under the HRA 1998. Their members are therefore entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal. Given the case law to date, it is possible that a court would not have considered the old disciplinary systems of ICAS to be fully compliant with the HRA 1998 because of a lack of independence and the closed nature of the disciplinary process. However, Davies (2003a) shows that the courts have adopted an essentially pragmatic approach to human rights issues in relation to professional bodies, with most actions under Article 6 failing, including the argument that legal representation is essential to a fair trial.28 29 Although this line of case law involves the legal profession, Davies (2003b) is of the view that it is very unlikely that the courts will find the regulatory actions of a professional body to be in breach of the HRA 1998. ICAS appeared to be less certain, hoping that its changes to its disciplinary system, including the incorporation of legally qualified members to hear cases and with the right to request that proceedings are held in public, would satisfy human rights’ concerns and lessen the possibility of its disciplinary processes being challenged in court. Thus ICAS hoped to satisfy the spirit of the HRA 1998 within a procedure that was financially affordable. The HRA 1998 has clearly had some impact upon the workings of ICAS. In this section, we explore the implications of the incorporation of a human rights framework on professional discipline by exploring the rights of the various parties to a dispute. Public opinion diverges on the merits of a human rights framework in the UK, variously viewing human rights as either a mark of a civil and just society (Kennedy, 2004) or viewing the proliferation of rights and associated rhetoric as undermining the real concerns of the early human rights’ advocates (Wellman, 1999). We argue that both views have merit here. The value of a human rights’ framework is that it recognises that parties to a dispute deserve to be treated in a fair manner. As the discussion of rights showed, however, such rights can be contradictory and, on occasion, the rights of one group must prevail over another. In any dispute, there are a number of interested parties. In order to explore these issues more fully, consider the case of a client who feels that the standard of work performed by a professional accountant has failed to meet expected standards. As well as the client, the professional body, the member complained against and the public will all have an interest in the case. Even without a complaint from a client, if a professional body becomes aware of misconduct by a member, the body, the member and the public are still interested parties. Adopting the Hohfeldian conception of rights and their correlatives, the rights of each of these parties in relation to complaints’/disciplinary procedures are depicted in Fig. 1. Each party will be considered in turn. 5.1. The client A client, both directly as a party to the professional-client relationship, and indirectly as a member of the public, has a right to expect that a member of a professional body will act with integrity and to the standards expected of a professional. The client will also expect to have a right to complain to the professional body if the matter cannot be resolved satisfactorily directly with the professional accountant. Within the Hohfeldian model, such rights are claim-rights that impose duties on others, namely on the professional member to act with integrity and to the standards expected of a professional, and on the professional body to have procedures in place to hear the complaint. These rights, and their correlative duties, do not appear

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Pine v Law Society (2001) C/2000/3651 as summarised in Davies (2002). One notable exception was the case of Holder v The Law Society where the judge at first instance held that a solicitor who had not had the benefit of legal representation had been denied a fair trial. However, this case was overturned on appeal (Davies, 2003b) on the basis that Holder, as a solicitor, should have been able to defend himself, thus reinforcing the earlier judgement in the case of Pine. 29

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to be contentious. They are part of the professional claim and are implicit in the ethical guidance to which professionals are expected to adhere and which professional bodies are expected to enforce. The client has claim-rights but not duties in relation to the provision of a complaints’ and disciplinary system. Of course, the client does have certain duties, for example the obligation to pay for services received or to provide honest information, but these relate to the professional relationship rather than to the provision of a complaints’ and disciplinary system. The rights of the client have not been changed in any way as a result of the incorporation of a human rights framework into the ICAS disciplinary process. The critical accounting literature suggests that clients have not been well served by the profession’s disciplinary procedures. Concerns raised include the view that the professional bodies are more likely to pursue relatively minor offences rather than more serious ones (Briloff, 1978), that sanctions imposed are minimal (Canning and O’Dwyer, 2003), that cases can take a long time to be processed in a system that lacks independence (Sikka, 2001) and that there is a lack of transparency (Canning and O’Dwyer, 2001). In such circumstances, clients may feel that the procedures simply do not seem to be fair, whatever their compliance with legalities. The new ICAS procedures implemented in 2005 did not offer additional transparency, given that most sanctions fell outside the list of those that required publicity. However, from 2010 all disciplinary penalties have been publicised, representing an improvement on the old system. The number of cases processed by ICAS (11 in 2004, 7 in 2005 and 10 in the 18 months to 31 June 2007) (ICAS, 2007b) is small which does little to assuage suspicions that cases are not being rigorously pursued. The lay representation incorporated into the new procedures does provide a degree of independence but within a context of appointment and remuneration by ICAS. Thus, the version of independence adopted is not absolute. In short, the ICAS changes have not substantially altered the position of the client in the professional relationship, though there would have been opportunities to do so. 5.2. The accountant Fig. 1 shows that the accountant has a duty towards clients in respect of the latter’s claim rights. The accountant also has a duty to act in accordance with professional ethics and standards in respect of the professional body’s claim-right to expect members to act in accordance with professional ethics and standards. Professional bodies assert that the accountant is expected to operate in the public interest within the framework of ethical guidance and, as such, has a duty to provide services of a professional standard to a client. This duty extends to the accountant’s relationship with his/her professional body. As a professional member, the accountant makes a commitment upon admission to membership to act in accordance with the professional ethics and standards of the professional body. This duty extends beyond the professional body as an institution to the body as a group of members. Fellow members of the profession, whether for self-interested or for more laudable reasons, would also claim to have the right to expect other members to act in a way that does not bring the profession into disrepute. This provides a correlative right of the professional body expressed as the expectation that members will act in accordance with professional ethics and standards in order to protect the public interest. Hence, disciplinary procedures are used by professional bodies to provide evidence that they have a means of dealing with those members who fail to act to the professional standards required by membership of the body. At least, this is how the professional bodies see the regulatory system operating. The literature on the sociology of professions stresses the importance to the professional claim of professional discipline within an ethical framework. The HRA 1998 adds a legal dimension to the ethical relationship between the accountant and his/her professional body. As well as having duties to clients, breach of which could lead to the instigation of disciplinary procedures, members have a right to a fair trial. In turn, the professional body has a duty to provide a fair trial. The incorporation of a human rights’ framework has impacted upon the accountant’s relationship with the professional body to the extent that the procedures provide for a more, though not completely, independent review of the complaint and the option to have the case heard in open session. In reality the impact may be slight, however since an accountant might find his assets frozen and be unable to pay for legal representation, yet the procedure might still be regarded as compliant with human rights legislation. The accountant in these circumstances might justifiably feel that the spirit of the human rights legislation has not been met. 5.3. The professional body Clients have a claim-right to complain to the professional body, while the body has a correlative duty to provide a complaints’ procedure. This underlines the individual member’s duty to act in accordance with the professional ethics and standards set out by the body, with the sanction that breaches will be investigated. The HRA 1998 applies to professional bodies which now have a duty to provide procedures designed to deliver a fair trial. It is not credible to argue against the right to a fair trial if natural justice and the HRA 1998 are to be respected, so ICAS has a disability in that it cannot challenge this law. It is significant that one of the main drivers for change at ICAS was the potentially crippling cost for members of defending costly court actions challenging its procedures under the HRA 1998. Given the high cost of discipline, it is tempting to assume that ICAS’s decision to amend its disciplinary procedures was indicative of the primacy of the private, rather than the public interest, as postulated by Parker (1994) and Canning and O’Dwyer (2001, 2003, 2006). Interestingly, ICAS admitted as much. As stated earlier, the ICAS Council (ICAS, 2003, p. 9) stated openly:

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A combination of factors, mainly the serious misconduct on the part of the few affecting the interests of the many, has led to spiralling investigation and discipline costs for ICAS. ICAS is continuing to investigate how it can reduce the cost of discipline without damaging the effectiveness and efficiency of the disciplinary processes. The Annual Report and Summary Financial Statements of ICAS for 2005 (ICAS, 2006a, p. 9) state that: In 2005 the number of disciplinary complaints received reduced by 12 from the previous year. Disciplinary costs also reduced significantly from over £600k to less than £300k, proof that effective disciplinary action in the harder cases has borne fruit. Thus ICAS was clearly prompted to act by the high costs involved. Nor can these costs be regarded as unique to the circumstances of 2005 which prompted ICAS to amend its disciplinary procedures since the annual subscription payable to ICAS by its membership since 2010 has included a levy to cover the ICAS financial commitment to the AADB. The ICAS position shows how far professional bodies go in attempting to balance public and private interests. Whatever the expressions of natural justice justifications, and the desire to be seen to act in the interests of ethics and integrity, the economic reality is that a professional body’s very going concern hinges on financial solvency and that this could be jeopardised by large legal expenses. The duty to discipline and the right of fellow members to see discipline in action in order to protect the professional status, and livelihoods, of the non-errant therefore has a price tag attached. The overwhelming impression is that ICAS was mindful of commercial pressures and acted to protect these. In so doing, it made visible its private interest concerns, while simultaneously stressing its public interest responsibilities. It must also be questioned whether the public interest would have been any better served if ICAS had gone bankrupt, rendering it unable to pursue disciplinary cases at all, showing the problematic nature of the public/private interest intersect. Whatever the price, even the complained against have the right to exercise their right to a fair trial. That is the reality of the HRA 1998 and the changes to the ICAS disciplinary procedures are designed to give recognition to such a view. In Dworkin’s terminology, this right or principle is a standard to be observed because it is a requirement of justice and fairness. However, as Dworkin argues, a balance must be struck between the rights of the individual and the goals of the wider community. The ICAS procedures appear to provide such a compromise in that they take cognisance of the HRA 1998 but in a manner that gives ICAS some control over its costs. In particular, the ICAS procedure now allows for the accountant who is subject to complaint to be required to fund the investigation. This prompted discussion in ICAS’ monthly magazine, CA Magazine, in November 2006, with a member questioning whether this contravened the long-held principles of the presumption of innocence until proven guilty and raising concerns that some accountants might not have the resources to defend themselves. The ICAS Chief Executive replied (ICAS, 2006b, p. 58) that advance costs orders: . . .are based on the principle that it is the defaulter and not the membership in general that should pay for their misdeeds. . .. Advance costs orders are not made without the member first being given the opportunity to make representations. Nor will they be made unless the making of the order appears to. . .be reasonable and appropriate in all the circumstances, including the means of, and available to, the member concerned and to any representations which he may have made. In the British justice system, it is not customary for the accused to pay for mounting a case. In this regard, it would seem that ICAS’s desire to keep costs under control has shifted the balance from body, or from members in concert, to individual member in a way which does not seem consistent with the intentions of the HRA 1998. ICAS has given assurance that costs will not be required to be paid by members in cases where hardship can be shown but it is a peculiar form of justice that focuses on ability to pay rather than the merits of the case. The contradictions between the individualistic nature of morality and the collectivist nature of law have already been discussed. The new ICAS procedures exemplify this contradiction. They also contradict the Rawlsian view that the law should apply equally except insofar as the disadvantaged would suffer. In this instance, the individual professional member, as well as clients, lack the power of the professional body yet the procedures do not appear to be weighted in their favour. The profession’s stance is therefore littered with contradictions in a system where the public and private interests collide and where neither is fully satisfied. 5.4. The public interest Of all of the parties depicted in Fig. 1, the public interest is the hardest to capture in a Hohfeldian analysis. Lehman’s (2005, pp. 675–676) view that, “Accounting is a social practice with people, cultures, and myths performing the dance and concert that create relationships, collaborations, harmonies, and conflicts” implies that the public interest will be hard to capture and will be subject to multiple constructions but unified in the desire to provide “a better life for all” (Lehman, 2005, p. 685). The problems of access to justice and legal representation, the low rate of prosecutions, the difficulties of proving a breach of the HRA 1998 and the confusion between the articulated private and more ambiguous public interest, suggest that the full potentiality of human rights in the public interest has not been realised in relation to professional discipline. The literature review showed the conflict between rhetoric that promotes the public interest and actions that may instead promote primarily the private interest. In relation to ICAS, the public and private interest in reducing costs has already been mentioned. Baker (2005) argues that the rhetoric of such bodies as AICPA and FASB shows that the public interest has become conflated with the needs of investors and capital markets. As an alternative, Cooper (2005) argues that there is a need to

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protect the underprivileged, in keeping with the theory promulgated by Rawls. The question arises, therefore, as to which group(s) the public interest should serve. Given its ambiguous nature, it is tempting for proxies to be found, in the form of clients, yet the interest of a client in getting immediate redress and the public interest in considering wider implications are not the same. Consider the case, for example, of victims to an environmental disaster who believe that recommendations by accountants to save costs led, in full or in part, to the circumstances that caused environmental damage resulting in health problems. Or consider the case of a multinational that generates large revenues from mining mineral resources in a poor country where citizens lack decent healthcare or educational provision but pays no local corporation tax because of the accounting policy choices made, and transfer pricing policy managed, by accountants30 . There may be no suggestion that the accountants in either case acted contrary to accounting guidance yet the citizens who have suffered health problems and who have been unable to get decent treatment might feel that their situation has deteriorated and that their human rights had been abused because of the actions of the accountants. Adopting Kennedy’s (2004) view that human rights are a mark of a civil and just society – a view with which the authors concur – it would seem fair that victims are able to set out their claims and have the opportunity to receive redress if the claims are founded. Such claims would always be hard to prove but, given the legally recognised limitations on professional liability discussed earlier, it is very unlikely that a claim could be raised successfully against the accountants in question. Despite the sympathies that the cases evoke, the disciplinary procedures of professional accountancy bodies do not permit complaints here. No professional body would be likely to open the floodgates to complaints such as these, particularly as the legal system takes a much more limited view, but the cases illustrate the difficulties of bringing an action in the public interest. Wellman’s (1999) view is that the proliferation of rights has undermined the real concerns envisaged by human rights advocates. The above examples relate to issues of real human concern yet have less chance of successful claims than the case of errant accountants who tried to evade punishment for wrongdoing by arguing that a professional body’s disciplinary procedures were not complaint with the HRA. This is not to argue that the accountants should not have been able to challenge the old ICAS disciplinary procedures as the right to a fair trial is a fundamental human right but the contrast between the cases shows that some human rights cases will be easier to pursue in the public interest than others, and not always in ways which intuitively feel just. Given that legal precedent only recognises claims from third parties who stand in proximity to the professional within a direct, recognised relationship, and that professional firms are permitted by law to limit their liability, it is clear, and deeply regrettable, that the public interest is accorded a much weaker position than individual accountants, their clients and their professional body according to the model outlined in Fig. 1. This represents a missed opportunity to accord greater weight to the public interest. 6. Conclusions The disciplinary procedures of professional accountancy bodies have received only limited attention in academic literature. This paper adds to the literature on professional discipline by focusing specifically on the incorporation of a human rights’ framework into the disciplinary process, with specific reference to the disciplinary procedures of ICAS. Although professions traditionally regulated themselves, this can no longer be regarded as a prerequisite for professional status given recent developments within the medical and legal professions, which suggest that these professions were no longer entirely trusted to police themselves. The accountancy profession has not yet been subject to the same level of scrutiny. The UK government has indicated that a risk-based approach be applied to regulatory environments (DoH, 2007 and BRTF, 2003). Where human life is concerned, the risks are clear, hence the changes to medical regulation. The justice system, too, is high profile and subject to fundamental change in the face of the terror threat which has been used to justify changes to trial by jury and the presumption of innocence. This may explain why the legal profession has also come under regulatory scrutiny. In such a context, human rights have surely never been more important, as principles that have stood for generations have been cast aside with comparative ease. Against this backdrop, the risks associated with accountancy perhaps do not appear as great, notwithstanding scandals such as Enron, Parmalat and WorldCom. Nonetheless, the accountancy profession should not be complacent. If its complaints’ and disciplinary procedures do not assure the public interest then attention may turn to them. The incorporation of a human rights framework could be viewed in this context from the viewpoint of the professional bodies as an attempt to pre-empt outside interference by modernising complaints’ and disciplinary procedures in order to better address the public interest. This paper has shown that the precise nature of rights is disputed, variously described as natural, civil or moral rights, but all traditions accept that the law should give recognition to certain rights. While legal theorists dispute the detail of Hohfeld’s thesis, there is broad acceptance of the basic idea of the relationship between claim-rights and duties, hence our utilisation of a Hohfeldian-type analysis, depicting in Fig. 1 the correlative rights and duties inherent in the professional disciplinary process. The terminology of rights serves to enshrine certain principles, such as the right to a fair trial or equality under the law. Rights have been shown not to be absolute, necessitating consideration of the rights of the individual and the community which may at times conflict. The term ‘human rights’ can be viewed as a modern manifestation of, and extension to, the legal tradition discussing the nature of rights. While the term has almost assumed the form of a mantra,

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We are grateful to one anonymous referee for highlighting the latter scenario.

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the underlying notion does give legal effect to the rights of those whose power is restricted. Being essentially a part of what defines humans, human rights are, or at least if fully effected should be, aspirational, inspirational and emancipatory. Legal challenge under the HRA 1998 has altered the nature of professional discipline within the accountancy profession. Previously entirely self-regulatory, discipline is becoming increasingly subject to legal principles. This situation is somewhat paradoxical. The disciplinary system is, according to the profession, designed to protect the public interest. Yet, recourse by errant members to litigation under the HRA 1998 made it more difficult for the profession to discipline those members and prompted ICAS to create new mechanisms to secure human rights’ compliance. It might be generally assumed that the imposition of an overarching human rights framework onto a professional disciplinary system would enhance the public interest. To the (limited) extent that the new focus on human rights has rendered some aspects of rights (essentially confined to claim-rights) more visible, this has been achieved. This paper has depicted the rights, and correlative duties, of the various parties to a dispute (see Fig. 1) in order to better understand the myriad of relationships that exist in the context of professional discipline. Wider analysis of the rights and duties of parties to the professional relationship generally was outside the scope of this paper but would be worthy of investigation in contexts other than the complaints’/disciplinary one. Further research could also elaborate on the rights inherent in the procedures of other accountancy bodies. Hohfeldian analysis has provided a means of modelling relationships. Fig. 1 shows that the incorporation of a human rights’ framework by ICAS can be seen to have impacted upon the rights and duties of the accountant and professional body in relation to a fair trial. In other respects, however, the rights and duties of the four parties (client, accountant, professional body and the public) have remained largely unchanged. The human rights framework can therefore hardly be said to have had a pervasive influence in this case. It must be asked whether the new ICAS system will protect the public any better than the current one. The new ICAS system is certainly more open and transparent than the previous one now that there is provision for open hearings and publicity regarding disciplinary sanctions imposed on members. The incorporation of a human rights framework into ICAS’s disciplinary process has had some internal effect in altering the nature of ICAS’s relationship with its members in relation to professional discipline. These positive changes address some of the criticisms made in the accounting literature regarding professional discipline. However, other major criticisms have not been addressed. Parker (1994), Bédard (2001) and Canning and O’Dwyer (2001, 2003, 2006) criticised the disciplinary processes of Australian, Canadian and Irish accountancy bodies on the grounds that clients were not well-served by disciplinary procedures that did not give all cases equal attention, imposed trivial penalties and were overly slow. By making no impact on either the accountant’s or professional body’s relationship with clients, as shown in Fig. 1, the incorporation of a human rights’ framework has done nothing to address these issues. If an independent procedure had been introduced, there would have been clear benefits for the member being investigated in terms of the exercise of justice and, for the public, there would have been greater openness. The new ICAS rules have sought to shift the (not inconsiderable) costs of the complaints’ and disciplinary process to the accountant who has been the subject of complaint. This weakens the tie that has been said to bind professionals with one another and could impede access to justice on financial grounds, which does not sit well with the intentions behind human rights’ legislation. The ICAS changes, though possessing some limited positive features, have failed to alter significantly the balance between the private and public interest with the former still being paramount. The fact that the new ICAS procedures show a preference for firms to investigate complaints themselves in the first instance shows ICAS’s desire to minimise its own disciplinary costs, as does the charging of costs to members being investigated. We conclude, therefore, that the full potentiality of a human rights framework on professional discipline has not been realised. In particular, while some rights have been clarified, the accountants’ relationship with the public interest has not been affected by the ICAS disciplinary changes. This represents a missed opportunity and so the reprioritising of the public interest remains to be achieved.

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