SDT “does not have power” to revoke s43 orders made by SRA

SDT: It can review, not revoke, SRA order

Non-solicitors banned from working in law firms by the Solicitors Regulation Authority (SRA) cannot apply for the Solicitors Disciplinary Tribunal (SDT) to revoke the order, the tribunal has decided.

The SDT said it only had the power to review whether the order should have been made in the first place.

The issue was unclear – indeed, the SRA in this case advised Huseyin Arslan to apply to the SDT for a revocation order.

In January 2015, an SRA adjudicator made an order under section 43 of the Solicitors Act 1974 to restrict Mr Arslan from working in the profession without the regulator’s permission.

He was an immigration caseworker at Duncan Lewis – though the SRA did not uphold a serious allegation against him, it later found that he had created or altered three documents as part of his defence. This led to the section 43 order.

The following year, the order was first overturned by the SDT and then reinstated by the High Court.

The SDT dealt with the question of whether it could revoke the order as a preliminary issue, saying the terms revocation and review have at various times been used interchangeably, “when they ought not to have been”.

This included in the High Court ruling. “The tribunal considered that the comments in Arslan, to the effect that the applicant could apply to the tribunal for revocation were obiter, as the issue of future remedy was not something on which the court had been asked to make a ruling.

“The tribunal concluded, respectfully, that the learned judge had used incorrect terminology when making reference to revocation.”

The SDT made clear that an application for review considered whether the order should have been made, “or whether the decision to do so was wrong, or that the decision was unjust ‘because of a serious procedural or other irregularity in the proceedings’”.

An application for revocation concerned whether the order remained necessary.

The 1974 Act made clear that a section 43 order could only be revoked by the body that made it, the SDT went on.

“The tribunal clearly did have the power to review a section 43 order made by the SRA, but it did not have the power to revoke [one].”

Mr Arslan was allowed to change this application for revocation to one of review – while making clear that he was unhappy with the SDT’s ruling – but the tribunal found no error or other irregularity to justify overturning the order.

There was also no basis on which to vary the order; in any event, “it was difficult to see what variation could be made that would both leave the order intact but also be of assistance” to Mr Arslan.

The SDT noted that Mr Arslan had asked it to ‘leapfrog’ his case to the Supreme Court so it could consider declaring the process of imposing the section 43 order incompatible with the European Convention on Human Rights.

It said: “The tribunal had no power to undertake such a procedure and, even if it did, would not have done so.”

There was no lack of due process, it went on – Mr Arslan was given “ample opportunity” to make representations throughout the investigation and before the tribunal, and had done so.

There was “no evidence” that the section 43 procedures in general, or the application of them in this case, were a breach of his article 6 right to fair trial.

The SDT refused Mr Arslan’s application and the section 43 order was confirmed. He was also ordered to pay costs of £4,332.

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