On 20 September 2023, Richard Orpin, Director, Regulation & Policy at the Legal Services Board, spoke at Westminster Legal Policy Forum’s event, ‘Next steps for equality, diversity and inclusion in the legal profession’. In particular, Richard spoke about the role of regulation in promoting EDI in the legal sector – regulatory requirements and priorities, initiatives and next steps, sector responsibilities, and future areas of focus. The speech is below. Check against delivery.
Speech by Richard Orpin
Good morning, it’s a pleasure to be here, virtually, and to speak about such an important topic. Let me start by introducing the Legal Services Board. We’re the oversight regulator for legal services in England and Wales, and our role is to hold frontline regulators to account for their performance.
We’re a statutory body, created by Parliament, and are independent of both the legal profession and the government. We are required to promote eight regulatory objectives set out in the Legal Services Act, one of which is to encourage an independent, strong, diverse and effective legal profession.
With that objective in mind, I’d like to talk today about the work we’ve done to better understand the lived experience of legal professionals who’ve encountered barriers to getting in and getting on in the profession, our work to assess where interventions in the past have fallen short and to ask how regulation can be a catalyst for change in the future.
We know that regulation can and should do more to address the persistent barriers to achieving a more equal, diverse and inclusive profession. A qualitative research study that we published in May this year, looking into legal professionals’ experiences of trying to get into, feel part of and succeed in the profession identified a range of barriers to progress. These included:
- Working cultures built around billable hours, which can exclude some groups;
- A need to be perceived as the ‘right’ sort of person clients will expect to work with, which limits opportunities for those from certain backgrounds;
- A lack of access to HR resources in some firms making it more difficult to deal with counter-inclusive practices and behaviours;
- A lack of flexibility in working practices, such as problems seeking flexible working arrangements, and some professionals still having to work in outdated and inaccessible physical environments.
We have also published an independent review by the Bridge Group into the effectiveness of regulatory interventions and the extent to which regulators evaluate the impact of their diversity and inclusion initiatives. The report produced four key findings:
- A need for clarity and support: Overall, regulators suggested that inaction around EDI resulted from a range of factors, including a lack of clarity around expectations, or what initiatives are aimed at achieving, and why.
- Problems with ownership and expertise: Regulators suggested it wasn’t always clear whether responsibility for EDI sat with the regulator or the representative body, and that there might be duplication of effort here, or even competition. Within their own bodies, they are occasionally uncertain about whether some diversity and inclusion staff have the specialist skills and training required to help drive this complex agenda.
- Role ambiguity: Regulators appear unclear about what is best delivered by representative bodies, what is best delivered by regulators, and what is best delivered from within regulated bodies.
- Challenges shared in other sectors: Although there are some challenges which are unique, or particularly acute, in the legal services sector, regulators in a variety of sectors are also struggling with similar issues, including how best to use their regulatory powers and precisely how to measure and evaluate any impact they have.
So how can regulation act as a catalyst for change. Well there have been a number of suggestions put forward, and the Legal Services Board is currently assessing the available evidence to inform our view on what next.
The Bar Council’s Race at the Bar report recommended setting targets for improving diversity within specified timeframes, allowing actors to evaluate programmes to support access, retention and progression against agreed goals.
It’s also been suggested that more needs to be done to assess why EDI initiatives have been less successful in improving diversity at senior levels. It may be necessary for regulators to develop their own models of seniority around which to collect data and track progress.
The SRA has set out guidance to help individuals and firms understand the risks of failing to protect and support colleagues in response to allegations of bullying or toxic working environments and cultures. Our own work has identified examples of these behaviours and we consider it to be a top priority to ensure that regulation helps to address persistent counter-inclusive practices.
There are some targeted initiatives aimed at improving access to the profession, such as the Law Society’s Diversity Access Scheme and Bridging the Bar, which support aspiring, talented individuals from underrepresented groups. The schemes bring tangible benefits to individuals’ careers and help to improve the diversity of intakes year-on-year, but it’s not clear that they’re effective at bringing about wider changes to central systems and processes underpinning recruitment and progression which continue to present barriers.
So, to conclude, the LSB is of the view that progress to date has been insufficient, and we’re asking ourselves whether an evolution in regulatory approach is necessary. This could mean moving away from guidance to regulators, towards interventions that may challenge and even disrupt the status quo of the practices, processes and cultures that limit progress towards a diverse and inclusive profession. Whatever we conclude, it’s clear that there is a key role for regulation to play in delivering a legal profession that truly reflects the communities it serves. Thank you.
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