Jobsworths yes, but not racists
Professional regulators must learn the art of light-touch supervision, argues Martin Mears, but it is absurd to excuse them from racism.
Apart from the usual axe-grinders and ‘stakeholders’, few are likely to have read Lord Ouseley’s report on why black and minority ethnic (BME) solicitors feature disproportionately in the work of the Solicitors Regulation Authority (SRA) (see  Gazette, 21 August, 4). The report will, therefore, join the ranks of literature assumed to have demonstrated the urgent need for yet more equality and diversity training, and self-flagellation.
The reaction of the Society of Black Lawyers was predictable. It claims that Lord Ouseley has revealed ‘a culture of bias and racism in the investigation process and culture of the SRA which has gone unchallenged by managers’. The Society’s response includes recommendations that ‘all current investigations of minority solicitors be suspended’, that ‘all outstanding race-discrimination tribunal actions by minority firms be settled forthwith’ and that ‘a new SRA board and chief executive be appointed forthwith’. The Ouseley report does not provide the slightest justification for these preposterous demands.
The report claims to be an independent review. This is true only in the sense that Lord Ouseley is an outsider. As a former chairman of the Commission for Racial Equality, however, he would hardly claim to approach a subject of this kind with a mind free from, albeit unconscious, preconceptions.
That said, it is plain that Lord Ouseley is anxious to be fair to everyone and his actual findings of fact are not tainted by bias or prejudice. At the outset he states what surely ought to be regarded as the report’s central finding: ‘The cold case review of 187 files did not reveal any evidence of inappropriate penalties being applied to breaches of conduct, practice or other requirements by [BME] solicitors.’ Neither does the report cite a single instance where a BME solicitor or firm has unreasonably been singled out for attention.
It would be surprising if it were otherwise. The SRA, like the rest of the liberal establishment, is obsessed with equality and diversity. For any of its staff to manifest any trace of genuine racist attitudes would mean instant career death. In this context, the report made this finding: ‘In assessing closed files for this review there is an inescapable conclusion that allegations of breaches were founded and penalties imposed appropriately.’
Looking at these words, are we to conclude that BME solicitors have no justified grievances? Unfortunately not. The report summarises BME solicitors’ experience of their dealings with the SRA. These include: demands for information and documents within punishing timescales; a reluctance to apologise when a complaint is dismissed; draconian interventions which necessitate a disproportionate and unreasonable effort to be expended on low-risk allegations or flimsy suspicions; and the use of untrained case workers.
These allegations will come as no surprise to anyone who, like myself, is familiar with past reviews of the activities of the predecessors of the SRA and Legal Complaints Service (LCS). Without exception these reviews were highly critical, though it never occurred to anyone to link the criticisms with racism. The problems revealed were discussed primarily in terms of managerial ineptitude and inadequate case workers. The Ouseley report goes further and identifies a new issue – the high-handedness and arrogance of some investigating staff.
The report’s central question is why the SRA seems to target smaller firms, where BME solicitors are disproportionately concentrated. To this there are two answers. First, large firms have the managerial resources needed to cope with the crushing burden of over-regulation, which afflicts all solicitors. Second, it is easier for the jobsworths who inevitably flourish in organisations like the SRA or the LCS to play the officious traffic warden against small firms, which offer a softer target.
The staff of both the SRA and the LCS undoubtedly need the extensive further training recommended by the report. However, this training should focus not on eliminating imaginary racism but on learning to regulate with a light hand and to be reasonably helpful and courteous to those paying your salaries.
See also By the Book
Martin Mears is a past president of the Law Society