حق با چه کسی است؟ انضباط حرفه ای و تلفیق یک چارچوب حقوق (انسانی): بررسی موردی موسسه حسابداران خبره اسکاتلند

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.

Although the definition of a profession is contested (see, for example, Larson, 1977, Willmott, 1986 and 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 and 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. 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 self-regulating 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, Canning and O’Dwyer, 2003, Canning and O’Dwyer, 2006, Sikka, 2001 and 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.

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, 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, Canning and O’Dwyer, 2003 and Canning and O’Dwyer, 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.