Declaring prior conduct

CILEx Regulation explains why the duty to declare prior conduct to your regulator really matters 

In August 2021, CILEx Regulation changed the way in which it deals with prior conduct.

Your obligation to disclose certain conduct to CILEx Regulation really matters and it’s important to understand there are possible consequences for those failing to do so.

Duty to declare prior conduct

How familiar are you with the CILEX Regulation Enforcement Rules (ER)? Perhaps you’ve never had a negative finding made against you. You might assume there’s nothing to disclose to CILEx Regulation. That’s not necessarily the case.

All legal regulators have their own specific requirements for individuals to disclose conduct matters that relate to a person’s character and suitability. Ours are set out in Rule 11 ER which requires you to disclose in writing to CILEx Regulation whether you have at any time been:

• Convicted or accepted a caution in the United Kingdom for a criminal offence, or been convicted elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence*;
• Removed from being a trustee of, or being concerned with the management or control of, a charity;
• Removed from office as a member, director or manager of any public body;
• Adjudged bankrupt or made a composition with creditors;
• Disqualified from acting as a director of a company;
• The subject of a civil judgment;
• Subject to any investigation or proceedings concerning your fitness to practise by any regulatory or professional body; or
• Involved in any other matter which may be relevant to a decision by CILEx Regulation to admit, authorise or approve you.

"You might think that you can wait until, say, your application for annual renewal before making a declaration. But that’s wrong" 

You might think that you can wait until, say, your application for annual renewal (or any other application you may make) before making a declaration. But that’s wrong. Rule 12 ER requires you to disclose certain conduct matters at the earliest opportunity.

For example, you may have just made your annual declaration, but a couple of weeks later you are informed that another regulator or professional body is investigating a report of alleged wrongdoing.

You are adamant that you’ve done nothing wrong; no decision has been made. Do you need to declare this now? The answer is yes. However, we may wait until the other investigation is concluded before making our own enquiries, in fairness to you.

How to declare prior conduct

Prior conduct declarations are made online through the myCILEX portal. We announced our changes to prior conduct declarations on 23 August 2021. There is more guidance on what needs to be declared and how to do it correctly on our website.

We encourage you to read the guidance carefully before you complete your declaration. It explains whether you need to choose option A or B. This is important. Choosing the correct option will ensure that you declare only conduct which must be declared and don’t unnecessarily disclose matters which are not relevant.

For example*, if you were convicted of a offence when you were a teenager, but that conviction is now ‘protected’ and filtered from a standard DBS check you do not have to declare it. On the other hand, if you are subject to an ongoing criminal investigation, even if not yet charged or convicted, you are required to disclose it.

You may have declared your conduct to us previously. However, if your disclosure was before August 2019, you must choose option B, which requires you to answer a number of questions. You must also choose option B if you have new conduct to declare.

A very important point for newer members (and for those applying for membership for the first time, for reinstatement or for authorisation as a Fellow, Practitioner or to be in an approved role in regulated entity firm) is that you must also choose option B whether or not you have conduct to declare. Failure to do this can have significant consequences.

What might happen if prior conduct is not disclosed?

There are two significant consequences we’d like to highlight. The first is that by failing to disclose relevant conduct matters, you may breach Principle 4 of the CILEX Code of Conduct, which requires you to comply with your legal and regulatory obligations. Rule 12(4) ER states that failure to comply may be treated as misconduct. In this scenario we are looking at the failure to disclose rather than the specific type of conduct required to be disclosed.

Another possible consequence relates to the validity of your membership. For example, if you incorrectly chose option A (no new conduct to declare) when you applied for membership, CILEX may void your membership as the full requirements of membership (which include completing a prior conduct declaration) have not been met. This is especially important where we identify there was relevant conduct that should have been disclosed.

Our approach to dealing with prior conduct matters is proportionate. This allows us to approve many prior conduct declarations quickly. The problems occur when we identify errors or omissions in your declaration. We want to help you ensure that you do not inadvertently fall foul of the rules, so please remember your obligations and check all guidance before making your declaration.