SRA power grab leaves SDT increasingly impotent

One voice has been noticeably absent from the past week's discussion over the extension of the SRA’s fining powers: the party that stands to be usurped by such a move.

The Solicitors Disciplinary Tribunal remains the wholly independent body adjudicating on alleged rule breaches by solicitors and firms.

Yet scratch beneath the surface and this is an organisation with its authority and purpose being eroded, its work drying up and doubts even about where it is going to be housed. The tribunal appears increasingly sidelined and the SRA’s power grab will only accelerate that process.

It is only a year ago that the regulator successfully applied to increase its maximum penalty from £2,000 to £25,000. The SRA said at the time it wanted to be aligned with other legal regulators – whose fining powers are not limited – ‘in the longer term’.

But that possibility has developed faster than we could have imagined. The subsequent Economic Crime and Corporate Transparency Bill included a provision for the SRA to issue unlimited fines for facilitating economic crimes. Now the regulator has chosen the issue of immigration solicitors involved in potential misconduct to raise the question more generally with the government. Given how the Ministry of Justice is leaning on the SRA to legitimise its ongoing battle against the immigration sector, it is not difficult to imagine a quid pro quo arrangement.

Such powers would not necessarily leave the tribunal redundant. The SRA and SDT have both said that matters involving sexual misconduct and cases involving significant public protection and wider reputational issues must always be escalated to a hearing. 

But another change in recent years means that, even if the SDT is nominally asked to adjudicate over a case, there’s every chance it has already been decided. The rules were altered in 2019 to reduce the standard of proof from the criminal to the civil standard. In practice this has meant that solicitors charged by the SRA face spending vast amounts of money if they want to gamble on defending themselves in circumstances where the odds against them have narrowed.

Many take the swifter approach of holding their hands up, accepting the suspension or strike-off, and making an agreed outcome with the SRA long before it ever goes before the tribunal.

Such an outcome is usually rubber-stamped in the tribunal, which acts more as administrator than adjudicator. Of the most recent batch of seven decisions published by the SDT involving a suspension or strike-off, every one involved an agreed outcome. The lower standard of proof has ensured the SRA effectively acts as judge, jury and executioner, its own burdensome costs hanging like the sword of Damocles over a solicitor who may be tempted to fight their corner. The SDT is often little more than the technician releasing the catch on the guillotine.

All of which means this is an acutely bad time for the SDT to be dealing with internal strife. The organisation lost its chief executive at the end of last year following confirmation it would have to relocate after its eviction from its current premises. A reprieve has been achieved, with the SDT remaining where it is for the next few months at least, and negotiations are ongoing on new premises. Continuity for now, but such issues hardly underline authority.

Does any of this matter? The speed at which the SRA responded to the government’s call for help legitimising its taskforce publicity stunt might raise questions around the regulator's independence. There are no such issues with the SDT, which acts outside of government influence and prides itself on transparency and fairness. The fact its influence and scope appears to be waning should concern us.