Equality impact assessment

Decision making programme

Business unit: Business Planning and Performance
Publication date:  November 2011

Introduction

The standards we apply to our decision making across the SRA are set out in the 11 principles of regulatory decision making. All decision-makers are authorised to exercise delegated powers by the SRA Board. The quality of decision making impacts upon the SRA's ability to meet its regulatory objectives to regulate in the interest of consumers and the public and ensure that those providing legal services are fit and proper people to continue in practice.

The Board reviews the operation of the decision making principles on an annual basis. These were last approved by the Compliance committee on the 12 April 2011. All decisions should be based on the application of the guidelines set out in Principle 1. These are to be:

• fair to all individuals and groups. The protected characteristics defined in the Equality Act 2010 are:
  • age
  • disability
  • gender reassignment
  • marriage and civil partnership
  • pregnancy and maternity
  • race
  • religion or belief
  • sex, and
  • sexual orientation;
• published and transparent; and
• applied consistently.

We are revising and improving our decision-making processes in light of the introduction of outcomes-focused regulation (OFR). A decision-making programme has been set up, led by the Chief Adjudicator and overseen by the SRA senior management team (SMT). In order to ensure the implementation of effective decision making, a decision making framework has been developed for SRA staff who make formal decisions in respect of the individuals and firms we regulate. The framework is intended to provide an overview of the features which are common to, and underpin, decision making.

As a public authority the SRA is bound by the Human Rights Act and the equality duties and the purpose of this report is to provide an assessment of the impact or potential impact that our Decision-making criteria may have on equality and human rights.

The Equality Act 2010 brought into force a single public sector equality duty found in s.149, this will require the SRA, in the exercise of our functions, to have due regard to the need to

• eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act;
• advance equality of opportunity between people who share a protected characteristic and those who do not; and
• foster good relations between people who share a protected characteristic and those who do not.

Background to the decision-making programme.

In 2009 after a period of consultation the SRA Board approved the decision-making principles (as they are now) to provide a foundation for fairness in our decision making and to ensure the quality and consistency of decision making across the SRA.

As part of this earlier programme an equality impact assessment (EIA) was drafted and published which outlined our commitment to make fair and transparent decisions for all groups and in particular groups that are underrepresented in society. The key measures we agreed to undertake included the

• development and publication of the decision-making guidelines.;
• development of criteria specific to the various categories and types of decisions made;
• training on equality and diversity delivered to decision makers; and
• monitoring of decisions and outcomes of Adjudications.

Decision-making guidelines are published and we have developed criteria specific to the various categories and types of decisions made. Pilot training on equality and diversity was delivered. We monitor different types of decisions as part of our audit function including monitoring decisions and outcomes of Adjudications. Each decision is audited on the following four elements:

• technical
• analysis and decision making
• communication, and
• work management.

Any equality and diversity issues identified are also recorded.

The EIA outlined the need to monitor and collect data on the application of the criteria. This was to identify and assess whether this would result in more impartial decision making and to show that where reasons for decisions are based on known criteria, these were applied proportionately in all cases. It was important to monitor such outcomes because as early as 2006, we had identified a disproportionality in our decisions to take regulatory action against Asian and black solicitors. The EIA highlighted a potential adverse impact against solicitors from a black and minority ethnicity background. This impact could not be fully substantiated due to a lack of available data.

We have not been consistent in collecting and monitoring data on the application of the decision making criteria and its outcomes and are unable therefore to ascertain whether the implementation of the decision making criteria resulted in more impartial, fair and proportionate decision making. One of the reasons for this has been that we have not been able to effectively cross-correlate data from one work area to another due to lack of IT capability. Going forwards, the launch of our new IT systems will enable this information and data to be collected.

Objectives of the decision-making programme

The decision-making programme has been set up in order to:

• update the SRA decision making criteria and delegations schedule;
• produce a decision-making framework;
• develop and deliver decision making training ; and
• review decision making audit processes in accordance with an outcomes-focused approach to quality assurance.

Key stakeholders

Our key stakeholders are:

• individuals and bodies regulated by the Solicitors Regulation Authority;
• consumers of legal services; and
• the Legal Services Board, the Law Society, the Legal Ombudsman and the Solicitors Disciplinary Tribunal.

Assessing for compliance

We assess compliance with the 11 principles of regulatory decision making on a quarterly basis, by asking specific questions in relation to each principle which generates a compliance rating. Furthermore, we undertake quality checking exercises to validate compliance audit results. Audit reports provide an overall assessment of performance and highlight any common issues preventing compliance. These reports set out unit, directorate and organisational compliance.

Of the 11 principles, two make explicit reference to equality and diversity. These are

• principle 1, which states that "decisions should be based on the application of guidelines or criteria, which should be (a) fair to all individuals and groups regardless of any of the protected characteristics covered by the Equality Act 2010, (b) published and transparent, and (c) applied consistently"; and
• principle 10, which states that "decisions and the criteria on which they are based must be subject to monitoring and audit processes to (a) ensure fairness and consistency, and (b) identify and remedy any unjustifiable adverse impacts".

Subjecting decision-making criteria (DMC) to EIAs has a significant effect on compliance against these two principles. Criteria should be fair to all and consistently applied; undertaking EIAs in relation to each assists in the identification and mitigation of potential adverse impacts. As at quarter two of 2011, only ten per cent of all published criteria had been subject to an EIA.

The decision-making programme has prompted us to review all existing DMC and identify any additional requirements. A decision-making criteria template document and associated guidelines have been produced, which requires the author to consider whether an EIA is required. Where the author identifies an EIA is required, plans must be agreed with Policy (Inclusion) for its completion. The only reason the author may consider an EIA is not required is where a previous related—and still relevant—EIA has already been completed. If so, the author must prepare an addendum to the relevant EIA and submit to Policy (Inclusion).

The decision-making programme timetable estimates all DMC to have been reviewed and published on the SRA website before December 2011.

Training

As part of the Decision-making framework, all decision makers will be trained to ensure that the decisions made are fair, proportionate and transparent and are made in accordance with our regulatory and business objectives. We are planning a new tranche of training which will cover the elements of effective decision making and equality and diversity. The training will be rolled out to all decision making staff. The four elements of the training include

• an online e-learning package on the decision-making criteria principles
• a decision-making criteria programme to understand how to make a decisions and what to take into account to make effective and proportionate decisions; and
• "managing unconscious bias" training.

Equality impact assessments

As part of this programme, all decision-making criteria will be assessed to ascertain whether an EIA needs to be carried out. Where EIAs are identified, these will be given a risk rating of "high", "medium" or "low" to allow prioritisation of the completion of EIAs. Although we committed to review the EIAs completed under the previous decision making programme, of the ten per cent of completed EIAs, we were only able to review seven per cent of these.

Transparency and accessibility

We will continue to publish the decision making principles, guidelines and criteria on our website. We will also publish the schedule of delegations and the framework.

Monitoring and evaluation

We propose to target future audits through a risk-based approach by working with the Risk team to identify where we will need to concentrate our resources. We are not proposing to audit all types of decisions made. The factors determining which type of decision we focus on may be on the wider impact the decision has or on proxy elements such as complaints received for example. We will also monitor and analyse the data held on our decisions, such as appeals which are upheld. Existing IT restrictions hinder our ability to extract this data at present.

Although we do not have a specific programme to monitor decisions made against black and minority ethnic solicitors we do need to be conscious of the disproportionality identified in this area. We are currently monitoring outcomes against some of the decisions we take and are revising our data collection processes to collect data on outcomes for all decisions being made against the protected characteristics as outlined above. Monitoring this information is dependant on the setup of our new IT system which we are currently modifying to enable us to capture and extrapolate this information.

Our annual published monitoring reports, for example indicate that male solicitors, solicitors over the age of 41, and BME solicitors feature disproportionately in several key areas of our regulatory activity, in particular, referrals to the Solicitors Disciplinary Tribunal, the imposition of practising conditions and interventions. To enable us to gain a better understanding of this a report to research into the issue of disproportionality for BME solicitors was commissioned and published in July 2010. The actions arising from this research will be delivered as part of our Equality and diversity action plan 2011/12 and we will be publishing a report on our progress in meeting the actions before the end of 2011 to see how things have changed and developed.

Action plan