Achieving regulatory fairness: a disproportionately slow process?

In March 2021, my Leigh Day colleague, Emma Walker, and I wrote in these pages about the Solicitors Regulation Authority’s (SRA) publication of long-awaited statistics on the diversity profile of those subject to its disciplinary activities.

We explained that, depressingly, those statistics also revealed long-standing concerns over the SRA’s enforcement activities: that the decades-old overrepresentation of individuals from what the SRA describes as “BAME” backgrounds in the regulatory process continues unabated.

This was the case despite the fact the 2014 Independent Comparative Case Review (ICCR) made the 45 recommendations to the SRA as to how to improve matters and the steps the SRA set out, in a further report published in December 2020, that it had taken in pursuit of those.

The SRA included, at the tail-end of that report, a brief action plan for how it intends now to address the question of over-representation.

The steps included the creation of an “arm’s-length” quality assurance team to sense-check decision-making, enhanced data collection drives to capture more relevant information and a further report into the issue. The additional report will address the “factors that drive the reporting of concerns about BAME solicitors to us, to identify what we can do about this and where we can work with others to make a difference.”

The SRA also stated it would publish further diversity data, this time for 2019/20, about those involved in its enforcement processes. Although publication was originally planned for March 2021, those statistics were not in the event published until July 2021.

What do the new statistics suggest?

It will have come as little surprise to anyone with even a cursory knowledge of the history of this problem that the new statistics showed virtually no significant change. Nor, however, is that particularly the fault of the SRA, given the statistics largely arise from the same regulatory arrangements as the previous year, with the SRA’s Standards and Regulations and updated Enforcement Strategy only effective from November 2019.

However, what the publication of the additional statistics did show in no uncertain terms was the stark reality of quite how ‘baked in’ these problems are – as well as the urgency of the situation in terms of the SRA now taking targeted and appropriate measures to address them and to bring about meaningful change.

Where does responsibility lie?

It was for this reason that, in its public engagement on this issue since December 2020, a significant part of the SRA’s ‘messaging’ has been of considerable concern to me. Whether in the media, the SRA has repeatedly sought to draw attention to the fact it is not alone among professional regulators in experiencing this problem; and that, in fact, perhaps it is simply a function of broader societal factors, rather than an exclusive ‘SRA problem’.

The introduction of its July 2021 report said: “The overrepresentation of men and solicitors from Black, Asian and minority ethnic backgrounds in concerns raised with us and those we investigate is one we have seen for some time and reflects the pattern seen across many professions and regulators.”

In December 2020, the message was that the SRA wanted “to understand the structural factors that bring such overrepresentation to our front door, and to identify what we can do about this and where we can work with others to make a difference”.

The SRA is indeed correct that it is not alone among professional regulators in experiencing this problem. As a regulator engaged in supervising the delivery of legal services in a diverse and highly complex societal context, the SRA is of course not acting in a socio-political vacuum.

However, the prevalence of this messaging raises concerns that the SRA fundamentally sees the problem to be addressed as external to it and therefore beyond its power to do anything significant account. This inevitably increases the risk that the SRA may not be applying its attentions in the right directions; nor its resources as effectively as it might.

Are the proposals enough?

With this in mind, it is notable that very few of the actions the SRA has committed to in its action plan in fact do anything to interrogate its internal workings. For instance, the positioning of the external research as looking into “what drives the reporting of concerns” risks shifting the responsibility away from the SRA and its own processes where that sort of shift in focus simply cannot be justified.

As yet, the SRA has presented no data to demonstrate credibly that, once earmarked for investigation, solicitors from BAME backgrounds suffer no disproportionate treatment. Clearly, the SRA responds to and is situated in a society still influenced by systemic inequalities and prejudice.
However, as a regulator it is fundamental its processes uphold neutrality and remain accountable.

By shifting its focus externally, the SRA risks failing first to ensure its own house is in order before looking elsewhere for answers.

By way of further examples: the SRA helping staff to understand protected characteristics, while not providing information about how it monitors and quality assesses its investigative teams and decision-makers, does not go far enough.

The creation of an ‘in-house arm's-length quality assurance team’ raises questions around, for instance, who the team consists of and what practices the SRA intend to implement to ensure that they do not simply perpetuate the same patterns of disproportionality.

What next?

In 2020, the Solicitors Disciplinary Tribunal (SDT) introduced a new key performance measurement to ensure the diversity profile of the SDT’s staff team and its membership is reflected.

However, more representation is not always the answer and instead, having the right people with the necessary training is important. This would address the underlying perceptions of society towards certain members of groups, and works with representative groups to understand how to promote change.

The SRA must grapple with these issues if it is truly to address the injustices that result from its current regulatory model in a timeframe that affords hope for a fairer future not far down the line.

This is important, rather than merely just to the 18 per cent of the profession from BAME backgrounds but to all of those regulated by the SRA for whom fairness and justice lie within their reasons for submitting to its regulatory jurisdiction in the first place.

A version of this article was first published in the October 2021 edition of the Solicitor’s Journal (Volume 164 No.9).