The SRA responds to Independent Comparative Case Review Report

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The Solicitors Regulation Authority has published its response to my ICCR report which it published in March 2014 and committed itself to taking action to tackle disproportionality in regulatory action and outcomes for BME solicitors.

Outlining the range of actions to which it has committed itself, the SRA stated:

  • we have announced a programme of regulatory reform to ensure our regulation is more targeted and proportionate;
  • we will publish proposals to reduce regulatory burdens for small firms and to improve our engagement with, and regulation of, them;
  • we will engage with the Law Society, other representative bodies, firms and solicitors to identify ways to improve the co-ordination of efforts to improve diversity within law firms and to identify more effective approaches for the future. We will publish the outcome of this work in October;
  • we will use the data from the ICCR report and our regulatory outcomes report to analyse and understand the causes of disproportionality better so that we can address the issues and reduce disproportionality;
  • we will review the content of our regulatory outcomes report, start publishing it twice a year and undertake more engagement with stakeholders about what it is indicating, with a view to identifying priority areas for action;
  • we will revise and strengthen our internal quality assurance processes so as to provide greater assurance that our discretionary decisions are fair, consistent and free from bias;
  • we will publish an annual report on discrimination issues raised by law firms’ employees and consumers;
  • we will recruit people with expertise to join the SRA Board’s Equality, Diversity & Inclusion Committee (ED&I) to advise and support it in leading the work to tackle the issues identified in the ICCR report;
  • we will continue to take action to improve the diversity profile of our staff and develop effective training and professional development so that our staff have the confidence and skills to make fair and transparent decisions;
  • we will publish an update on our work on the issues identified in the ICCR at the end of October 2014, and a full report on progress in October 2015.

The SRA thanked the core team:

‘… Professor John and Anthony Robinson for their commitment to this project, their diligent examination of the issues and their recommendations. The report has added significantly to our understanding of this important issue. We would also like to thank Lord Herman Ouseley and the members of the EIG for their contribution to this work and for their assistance over a number of years in helping the SRA with this work. All of the organisations represented on the EIG are small and the members of those organisations who have attended the EIG and many other meetings with the SRA have given up their own time, freely, on behalf of their colleagues’.

I am encouraged by the SRA’s response and I hope the regulated profession as a whole and BME practitioners in particular will be, also.

From the outset, I was relieved that the SRA received my report without defensiveness and showed its commitment to giving careful consideration to its findings and recommendations and especially its implications for the way the organisation functions generally. I see this response as further evidence of that commitment and of a willingness to use the report as a vehicle for change.

The report provided evidence to the SRA of over regulation and of how the rules-based approach to regulation with its preoccupation with regulatory breaches impacted disproportionately upon BME solicitors as the majority of them were operating as sole practitioners, or heading up firms with no more than four fee earners. Disproportionality, while being highly correlated to ethnicity, was also explained by a range of other factors, some of which had to do with the over representation of BME solicitors among sole practitioners and heads of small firms and the structural and operational challenges that practitioners in those situations faced.

The report argued that a more nuanced analysis of the evidence appertaining to regulation of BME and white solicitors was therefore necessary before it could be concluded that disproportionality was a consequence of racial discrimination.

The SRA is clearly committing itself to understanding those nuances and taking action with the profession generally and with other relevant organisations (Law Society, Legal Services Board) to ensure that there was no institutional bias evident at any stage in its regulation of BME solicitors and that none of its procedures or decisions amount to institutional discrimination.

I am encouraged that the SRA is committed to putting in place a strategy for a more productive engagement with stakeholders and particularly with practitioner forums. It is crucial in my view that a democratically constituted (and conducted) forum is put in place to work in partnership with the SRA and support the organisation in taking the various actions it has indicated in its response. Such a group could assist the SRA by ‘monitoring’ on behalf of the profession its assessments and reports of its progress in implementing the recommendations of my report.

I particularly welcome the statements by Paul Philip, Chief Executive of the SRA, that:

“one of the most significant changes” to help cut the disproportionately high number of BME solicitors caught up at various stages in the regulatory process, from reports about conduct to interventions, would be an increase in diversity within medium and large firms.

“For as long as the profession and firms recruit and promote in ways which lead to disproportionate numbers of BME lawyers being concentrated in sole practices and in the smallest firms, then the issue of disproportionate outcomes is likely to remain to some extent.

“The SRA cannot address this issue on its own. Therefore, we feel it is right for us to set a challenge for the profession itself to consider the report and look at what actions it needs to take to ensure that there is no bias in the way firms make decisions in relation to work experience, training contracts, recruitment and career progression”.

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