Decision making at the SRA
Purpose and status of our guidance
We are the regulator of legal services in England and Wales, exercising the regulatory powers conferred on the Law Society of England and Wales relating to solicitors, law firms and individuals working and holding roles within those firms. The purpose of our regulation is to protect consumers of legal services, and support the operation of the rule of law and the proper administration of justice.
We make many decisions every day. These decisions can be final (those which bring our involvement with an application or disciplinary case to an end) or interim (such as to investigate a complaint). Final decisions may give rise to a right of appeal, but all can have a significant impact on the person who is the subject of the decision.
In short, fair and effective decision making is a crucial part of our work and this guidance sets out our approach to that role.
In making decisions, we always have in mind our public interest role, namely to protect consumers of legal services, and support the operation of the rule of law and the proper administration of justice.
In addition, we must act in a way which is compatible with, and most appropriate to meet the regulatory objectives set out in section 1 of the Legal Services Act:
- protecting and promoting the public interest
- supporting the constitutional principle of the rule of law
- improving access to justice
- protecting and promoting the interests of consumers
- promoting competition in the provision of legal services
- encouraging an independent, strong, diverse and effective legal profession
- increasing public understanding of the citizen's legal rights and duties
- promoting and maintaining adherence to the professional principles, namely that authorised persons should act with independence and integrity, maintain proper standards of work, act in the best interests of clients, in exercising rights of audience or conducting litigation should comply with the duty to the court to act with independence in the interests with justice, and to keep affairs of clients confidential.
These regulatory objectives may at times pull in different directions. However, what is important is that we have balanced the considerations they give rise to, in order to take the most appropriate course of action.
We are also required, under section 28 of the Act, to have regard to best regulatory practice and, in particular, the need to ensure that our work is transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed.
The considerations described above should always be kept in mind by decision-makers, but are reflected in the principles, outcomes, rules and policies they are applying.
As a public authority, we have a duty under the Human Rights Act 1998 to act in compliance with the European Convention on Human Rights.
There are certain rights which are likely to be engaged in our decision making. These include the right to peaceful enjoyment of possessions (Article 1, Protocol 1) which will be engaged when our decisions touch on an individual’s right to practice their profession or to run a business, and the right to respect for private and family life (Article 8), which includes the right to personal autonomy, freedom and respect for private and confidential information.
These are qualified rights, so there is no breach if we act in accordance with the law, and our action is proportionate in pursuit of a legitimate aim. Any interference with the former (Article 1, Protocol 1), must also achieve a fair balance between the general public interest and the protection of an individual’s property rights. In addition, Article 6, which safeguards the right to a fair trial when civil rights (such as the right to practice a profession) are being determined, is of key importance and is discussed further below.
We seek to demonstrate that we are a fair regulator and that decisions are made without unlawful discrimination. We must, under section 149 of the Equality Act 2010, have due regard to the need to eliminate unlawful discrimination, harassment and victimisation, and advance equality of opportunity and foster good relations as between people who share protected characteristics and those who do not.
We also consider carefully the health and capacity of those we deal with during our work, and understand the stress that involvement with the SRA can cause, for example; to complainants, witnesses and those we regulate. We make reasonable adjustments accordingly.
We believe decisions should be based on the application of guidelines and criteria, which should be: (a) fair to all individuals and groups, (b) published and transparent and (c) applied consistently. Our decision-making guidance and criteria are subject to equality impact assessment and our principles set out below support fair, objective and evidence-based decision making.
SRA Principles of good decision making
All of our decisions must be fair and seen to be fair. In order to ensure that we act fairly, we apply a published decision making process.
In summary, fairness includes the following principles, which are encompassed by the common law principles of natural justice and Article 6 of the European Convention on Human Rights (the right to a fair trial):
We take a risk-based approach, focussing our resources on the individuals and firms most likely to harm the public interest. We ensure that any decision to use our regulatory powers is proportionate, balancing the public interest with those of the individual or firm whose conduct or behaviour has been called into question.
This means ensuring that the action we take is necessary to achieve a desired effect. Our decision makers need to be clear about the public interest objective their decision seeks to achieve and why the decision reached is required in order to meet it.
Equality of arms
We ensure that any person who may be adversely affected by a decision has sufficient information to understand the nature of the decision and what the decision-maker is basing their decision on. They should have the opportunity to make representations before the decision is taken, which must be taken into account.
We may take some decisions without disclosing part, or all of the information and grounds in advance, such as where we need to close down a firm's business urgently to protect the public. In some cases, we may be unable to disclose highly sensitive confidential information or information that might prejudice an ongoing investigation. These situations will be exceptional and, where possible, the person involved will be informed of any non-disclosure.
Decisions must be free from bias and discrimination. They must also be free from any perception of bias, from the point of view of a fair-minded and informed observer. Therefore, decision-makers must declare any conflict of interest and remove themselves from cases in which they have any personal relationship, or a financial or other interest. This includes, in certain circumstances, separation between those reaching final decisions and the front line staff involved in the matter.
Each case must be considered on its own merits, on an objective analysis of the facts, and in accordance with our published policies, guidance and criteria. The information available to the decision-maker needs to be relevant and sufficient to enable a full and fair decision to be made. We have powers to seek information and decision makers should ask for more information if they consider it necessary.
Right of appeal
We provide one level of internal appeal for all final decisions, including those which give rise to an external appeal to a tribunal or Court. Further we are able to correct errors and to rescind a decision which is clearly wrong and needs to be put right quickly.
We seek to be transparent about the way in which we reach decisions and publish our criteria and guidelines, as well as, wherever possible, our decisions. Publishing decisions to impose sanctions or restrictions on an individual or firm helps ensure that we are accountable for our actions and that consumers are able to make informed choices. It also safeguards public confidence in the provision of legal services.
Our decisions and the information taken into account must be properly recorded. Decisions must be promptly notified to those affected, and sufficient reasons must be given so that it is clear what decision was reached and why. We work with people who complain to us or may be witnesses and aim to keep them updated on the progress of our work, and will inform them of the outcome.
Taken only by appropriate decision-makers
Decisions must only be taken by those who are authorised to do so under our Schedule of delegation. This enhances transparency and helps ensure accountability in our decision-making. We also define the technical and behavioural competencies that are required to make decisions at particular levels and ensure all decision-makers are trained and competent for the role.
Decisions and the criteria on which they are based are subject to internal monitoring and audit processes to ensure the quality, fairness and consistency of our decisions, and to review the efficiency and effectiveness of the procedures put in place to support decision-making, including our criteria and guidance.