LSB diversity report finds multiple failings by regulators

Phillips: Little progress to date

Measures taken by frontline legal regulators to improve diversity and inclusion are insufficient and based on inadequate evidence, according to a report published by the Legal Services Board (LSB).

One thing regulators could do, the report commissioned from the Bridge Group said, was join forces with their counterparts across the legal sector and beyond.

They should also focus on the interventions that work best at reducing inequalities experienced by women, ethnic minorities and other groups of individuals under-represented in the profession.

The LSB admitted there had been “little progress” on improving diversity in recent years and agreed it would encourage collaboration between regulators.

Accompanying the report – a review of the literature plus interviews by the Bridge Group of independent researchers – the LSB launched a diversity dashboard that shows at a glance key indicators which reveal the current state of diversity in the different legal branches.

For instance, presently by far the best showing for the representation of women is evident among those regulated by CILEx Regulation (78%) and the Council for Licensed Conveyancers (72%).

The Faculty Office oversaw the lowest proportion of women, making up barely a third of notaries. Not far ahead was the Bar Standards Board, which reported 39% of barristers as female.

The report highlighted that a key intervention by regulators so far had been to attempt accurate data collection on diversity.

But it acknowledged the exercise had met with varying compliance because of the sensitivity of questions being asked and a lack of trust on the part of lawyers as to what the data would be used for.

Meanwhile, the LSB’s own role in requiring the data was complex, because on the one hand it was being asked to set out its expectations for collection clearly while at the same time regulated entities resisted what was perceived as excessive control and oversight.

The report concluded there had only been “modest activity among regulators and a weak evidence base for what is effective” in part due to “ambiguity”, “dispersed responsibility and accountability” and a “vague” idea of what should be changed.

Other than data monitoring, currently interventions were “sometimes opaque”. While there was much diversity activity, when that from membership bodies and individual organisations was included, there have been a “lack of strategic approach and collaboration”.

Particularly resistant to change, the researchers said, were ‘middle managers’ in organisations who were likely to have the most effect on improving diversity but, according to current evidence, showed the least commitment. Also, women and minorities were less likely to occupy senior positions.

Crucially, a particular problem with the diversity agenda was that not everybody accepted what the nature of the problem was, or even that it existed.

They cautioned that as a result there were “no silver bullets”.

Diversity was a “wicked problem” partly because “there is also considerable uncertainty about how it can be resolved, or indeed what ‘success’ might look like, not least because equality can be defined in many different ways”.

The “sheer complexity of this agenda” was one reason why “it is so resistant to change”.

But the report nevertheless recommended solutions to improving diversity that involved all regulators approaching the subject afresh, by employing a “more systemic”, structured ‘theory of change’.

This was defined as “a planning tool often used in agendas of this nature which requires in-depth planning, the identification of concrete interventions, anticipated measures of success, and clear timescales”.

As well as data collection, better benchmarking, clear guidance on best practice and so on, the report said, the LSB could should consider facilitating collaboration between regulators within the legal industry and from other sectors.

Other possible interventions that regulators could focus on, it added, included: quotas, targets, alternative qualification routes and funding, diversity policies, flexible working, various recruitment measures, and unconscious bias training.

On quotas, the report said: “Quotas have been successful in many areas, and this is most likely where they are associated with clear negative consequences for non-compliance, such as fines.

“Downsides are that they are perceived as unfair by some groups which can lead to a backlash and it is not clear whether changes can be sustained over the longer term.”

Dr Helen Phillips, chair of the LSB, said a review of its statutory guidance on diversity and inclusion was underway and a consultation would follow later this year.

She added: “The LSB and the legal regulators share the statutory objective of encouraging an independent, strong, diverse and effective legal services sector.

“However, despite the positive intentions over the last few years, there has been little progress on improving diversity of our sector.

She said collecting diversity data was not “an end in itself”, adding: “The [Bridge] report… highlights that there has been little collaboration on diversity and inclusion.

“We want to help change that and a key part of our approach will be to work with regulators to encourage information sharing and cohesion to address these sector-wide issues.”

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