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Professional discipline update July 2020

Reflecting on Principle 6

Never has it been more important to reflect on the meaning of SRA Principle 6, that we must all act “in a way that encourages equality, diversity and inclusion”. With the death of George Floyd and the momentum of the Black Lives Matter campaign, it is time for us to have a much more honest conversation about what Principle 6 means in practice, and where we all may be falling short.

My colleague Emma Walker will discuss the SRA’s guidance note on Principle 6 in much more depth in her article in the Solicitors Journal next month on the importance of Committing to Change. The SRA’s guidance reminds us of our legal obligations, but also tells us that our “regulatory obligations extend beyond strict compliance with the law” offering advice on “good practice” and what you “may wish to” do.

Whilst going beyond the minimum is, of course, positive, I cannot help wondering if the guidance note is nevertheless setting the wrong tone. In seeking to make a “business case” for Principle 6, does it not come across as somehow less essentially “core” (in the sense of being a value) than the other Principles?

It has been encouraging to see how some firms and legal professionals have been positively engaging with Principle 6. One such initiative, the Race Fairness Commitment, includes a commitment to ask employees at least once a year their opinion on the statement “I can be myself at work”. Without wanting to diminish the focus on race and ethnicity, which the Black Lives Matter campaign highlights needs to be its own conversation, I wonder how many of us have really thought about that statement, which seems to go to the heart of the SRA’s definition of inclusion being “about accepting people for who they are and encouraging everyone to participate and contribute”.

Reflecting on some of our recent instructions, I wonder if some regulatory issues may have been avoided if people felt able to be themselves at work, and to speak up about mental health difficulties and discrimination. With the unequal impact of Covid-19 exacerbating existing inequalities and creating new categories of ‘vulnerability’, it is even more important that firms, and particularly those in a leadership role, think about the cultures they are creating, as my colleague Emma has discussed in relation to the pandemic and as I reflect on (in the context of the loosening of restrictions more recently) in the Solicitors Journal in its July edition (yet to be published). Communication is key to ethical leadership – and to making sure that mistakes do not become regulatory issues – and real change is going to require above all a culture of listening and reflection.

The SRA could play an important role in promoting a culture which has zero tolerance for racism and discrimination. The way the SRA has been clamping down on inappropriate use of social media, as well as discrimination occurring outside the workplace, indicates that it has the tools for the job. However, to credibly play this role, the SRA still needs some reflection – and action – of its own. This was a reality recognised by Dr Helen Phillips, Chair of the Legal Sevices Board, in her July blog. As we will shortly be pointing out in a letter to the Lord Chancellor, our anecdotal experience indicates that the disproportionate impact of the SRA’s regulation on BAME communities persists. While we await the SRA’s promised statistics of its regulatory enforcement activities by ethnicity, we all, the SRA included, need to take a long, hard look at Principle 6.

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Staying alert

2020 continues to be a strange and difficult year for all of us. As lockdown is, in most places, starting to lift, decisions will be made about going back to offices, continuing to work from home, or some combination of the two. As we settle in to new or old work arrangements, or consider the financial viability of bringing back furloughed staff or even keeping our doors open, we would do well to remember the government’s somewhat hackneyed slogan and “stay alert”. Our regulatory obligations remain very much in force, including the obligation to report serious financial difficulties to the SRA. In its June 2020 update, the SRA continues to warn about increasing attacks by cybercriminals and calls on firms to review the transparency rules, which a recent study indicated most firms are not complying with. Make sure you understand what your obligations are, stay alert and keep communicating.

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