Legal regulators “too slow” with diversity action

Phillips: LSB looking at how best to measure regulators’ performance on diversity

Progress by the legal regulators in understanding and tackling ongoing inequalities in the profession is “too slow” and lacks “strategic direction”, the Legal Services Board (LSB) has said.

The oversight regulator said there were “fundamental shortcomings” in the collection of diversity data across the sector, making it difficult to draw “meaningful comparisons”.

In a paper for this week’s board meeting, the LSB said that, on the whole, the regulators were “taking diversity seriously” and pursuing “a range of relevant actions”.

However, it had “reservations about how efforts are being targeted and coordinated, based on the limited understanding of the current situation amongst a number of regulators”.

More generally, the LSB said it was concerned that “progress in properly understanding and seeking to tackle ongoing inequalities in the make-up of the profession is too slow and lacks co-ordination and strategic direction”.

It went on: “While we know that actions are being taken, the lack of evidence and evaluations means that we are limited in our ability to assess if the regulatory bodies actions are doing the right things to enable greater diversity.

“There are fundamental shortcomings in the collection of diversity data across the sector. Each regulatory body has faced challenges, particularly in capturing data across all the protected characteristics.

“It is proving difficult to draw meaningful comparisons across the sector due to evidence gaps and inconsistencies in the way data is collected and classified. Work is ongoing to enable us to pull together the best picture possible.”

The LSB said that only three regulators – the Solicitors Regulation Authority (SRA), Bar Standards Board (BSB) and Institute of Chartered Accountants in England and Wales – had a “comprehensive understanding of their particular regulated community”.

The Council for Licensed Conveyancers, CILEx Regulation and the Faculty Office (which regulates notaries) were able to show a “satisfactory level of understanding”, but the Costs Lawyers Standards Board and the Intellectual Property Regulation Board were not.

Legal regulators explained this by referring to “a range of limiting factors”, including IT capacity, low response rates on some surveys and reluctance of respondents to provide specific data.

“The lack of a significantly robust evidence base fundamentally limits the ability of the sector to target their efforts and to demonstrate that actions are having an impact. Significant and urgent progress is required in this area.”

The LSB said no regulator was able to demonstrate that they had a comprehensive understanding of the differential impact of disciplinary and enforcement procedures on those with protected characteristics.

“The BSB and SRA have work under way to evaluate historical enforcement decisions for any differential bias.

“Other regulatory bodies reported that while work was under way the limited number of enforcement proceedings provide a poor basis on which to guide whether there is a differential impact on a practitioner with protected characteristics.”

The LSB admitted that it “first articulated” its expectations on discipline and enforcement in January this year.

The oversight regulator said this was one of three specific expectations introduced in January to clarify what “good regulatory performance looks like” in terms of diversity.

Regulatory bodies should  have an understanding of the composition of their regulated community, an understanding of the barriers to entry and progression, and measures in place to understand any differential impact on protected characteristics within their disciplinary/enforcement procedures.

In a blog on the meeting, LSB chair Dr Helen Phillips noted there was also no consensus on what types of interventions have been successful to meaningfully improve diversity across all the protected characteristics.

She said the LSB would be looking next year at how best to measure regulators’ performance on increasing the diversity of the profession.

“Our focus on diversity of the profession will progress alongside our work towards understanding how BAME consumers experience access to justice and the service they receive by legal providers.”

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