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 overrepresentation. 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.”