COMPLIANCE COMMITTEE
12 April 2011
CLASSIFICATION - PUBLIC
Public - item 4
Summary
In October 2006, the Law Society Regulation Board (now SRA Board) first approved the Principles of regulatory decision making. Updated in November 2008 to reflect recommendations from the report by Lord Ouseley, a further revision to principle 1 is now required to account for all 'protected characteristics' defined by the Equality Act
2010, ensuring compliance with the relevant equalities legislation.
This paper sets out why amending principle 1 is essential to account for the additional 'protected characteristics' not currently represented.
Approval of these amendments will help the SRA to meet its legislative requirements and duties under the Equality Act 2010.
Recommendations
The Committee is invited to approve the amendments to principle 1 of the 11
Principles of regulatory decision making.
This paper is for decision.
Karen Sarai
Diversity and Inclusion Officer
Annexes
Annex 1
– Principles with recommended amendments
Annex 2
– Implications of the Equality Act 2010 (report for SMT - October 2010)
Annex 3
– E&D Assessment
Annex 4
– Risk assessment
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COMPLIANCE COMMITTEE
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Public – Item 4
Introduction
1. This paper invites the Compliance Committee to approve an amendment to principle 1 of the Principles of regulatory decision making (the Principles).
Background
2. In October 2006, the Law Society Regulation Board (now SRA Board) first approved the Principles of regulatory decision making. These were latterly updated in November 2008 to include equality and diversity as one of the key principles in SRA's decision-making, as recommended in the report by Lord
Ouseley.
3. On 1 October 2010, the core provisions of the Equality Act 2010 came into force. This Act replaced all previous anti-discrimination legislation in an effort to simplify the law relating to equality and diversity.
4. In order to harmonise the various discrimination strands that had developed under previous legislation, the Act collectively terms them as 'protected characteristics'. These are listed as follows:
 Age
 Disability
 Gender reassignment
 Marriage and Civil Partnership
 Pregnancy and maternity
 Race
 Religion or Belief
 Sex
 Sexual orientation.
5. With effect from 6 April 2011, the Equality Act 2010 will bring into force a single public sector equality duty which will require the SRA, in the exercise of our functions, to have due regard to the need to:
 eliminate discrimination, harassment, victimisation and any other conduct prohibited under the Act;
 advance equality of opportunity between different groups; and
 foster good relations between different groups.
6. As part of the equality impact assessment on the new Disciplinary Rules of the
Handbook, it was identified that Principle 1 of the Principles of regulatory decision making should be updated to reflect the new protected characteristics as defined by the Equality Act 2010.
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12 April 2011
Principles of regulatory decision making
6. Principle 1 states:
“Decisions should be based on the application of guidelines or criteria, which should be (a) fair to all individuals and groups regardless of their ethnic origin, race, colour, gender, religion, disability, sexual orientation or age, (b) published and transparent, and (c)
applied consistently.”
7.
The proposal is that the principle should be amended so that it reflects all of the protected characteristics covered under the Act. The proposal is that Principle
1 should now state: “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 consistent ly.”
8. It is also proposed that the accompanying footnote should be amended to detail all of the protected characteristics covered. The current footnote states: “This principle is subject to the principle of proportionality. It does not apply to trivial decisions or to decisions of an internal managerial or administrative nature. The criteria may be set out in statute, or in a board or committee policy statement, or in unit procedures.” The footnote should be amended to state: “This principle is subject to the principle of proportionality. It does not apply to trivial decisions or to decisions of an internal managerial or administrative nature. The criteria may be set out in statute, or in a board or committee policy statement, or in unit procedures. 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.”
9. Approval of these amendments will help the SRA to meet its legislative requirements and duties under the Equality Act 2010.
Recommendation
10. The Compliance Committee is invited to: a. approve the following amendment to principle 1:
“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.” In place of
“Decisions should be based on the application of guidelines or criteria, which should be (a) fair to all individuals and groups regardless of their ethnic origin, race, colour, gender, religion, disability, sexual orientation or age, (b) published and transparent, an d (c) applied consistently.” b. approve the amended footnote to principle 1 so that it reads: “This principle is subject to the principle of proportionality. It does not apply to trivial decisions or to decisions of an internal managerial or administrative nature. The criteria may be set out in statute, or in a
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12 April 2011 board or committee policy statement, or in unit procedures. 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.”
Annex 1
– Principles with recommended amendments
Annex 2
– Implications of the Equality Act 2010 (report for SMT - October 2010)
Annex 3
– E&D Assessment
Annex 4
– Risk assessment
Karen Sarai Author:
Date: 16 March 2011
This paper is for decision
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12 April 2011
Annex 1
The 11 Principles of regulatory decision making are:
1. 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.
1
2. Formal delegations of decisions from the board should be made to generic categories of staff, not to individuals or specific posts.
2
3. There should be a presumption in favour of decisions being made at the most appropriate and operationally effective level in the organisation at which fitness for purpose can be assured.
3
4. Decisions of similar complexity and impact should be made at similar levels throughout the organisation.
5. There should be a single system for formal adjudications for the whole organisation. Departures from this structure need strong justification.
4
6. All final decisions should be subject to some form of appeals procedure.
5
There should be only one level of appeal.
6
7. Decisions by panels, rather than individuals, should only occur where required by (a) the impact of the decision, or (b) the desirability of having wider (including non-lawyer) input into the decision.
7
8. Final outcomes of decisions which determine rights, and all related decisions, should be recorded and accessible to all staff.
8
9. There must be sufficient flexibility to allow matters to be taken straight to the point of decision, omitting intermediate decision-making stages which add no value.
10. 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.
9
11. The Board should review the operation of the decision-making principles annually.
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1. This principle is subject to the principle of proportionality. It does not apply to trivial decisions or to decisions of an internal managerial or administrative nature. The criteria may be set out in statute, or in a board or committee policy statement, or in unit procedures. 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.
2. This principle is subject to the statutory requirements of section 79 of the
Solicitors Act. In certain limited circumstances, where specific expertise is required, post holders may be named.
3. It is the responsibility of the unit manager to confirm that staff have the skills and knowledge to fit them to make delegated decisions, and to ensure that they receive the training and support necessary to maintain this.
4. The Board has agreed in principle to a single Panel of Adjudicators replacing the in-house adjudicators, the Adjudication Panel and the Professional
Standards Appeals Panel. Other adjudication functions are not currently within scope.
5. Final decisions which determine rights or professional standing should attract a formal right of appeal. Other final decisions in casework matters should at least be capable of being reviewed within the unit if there is an allegation of error, unfairness, etc.
6. If a final decision is made within the unit, appeal will be either to a single adjudicator, or to a panel. If the final decision is made by a single adjudicator, the appeal will be to a panel.
7. The Board has decided that panels of two members are acceptable.
8. Related decisions are those which contribute to the outcome of the final decision. The decision to follow a particular course of action may be an inprocess or investigative decision, but will have an effect on the outcome of the matter. This principle is subject to the principle of proportionality. It does not apply to trivial decisions or to decisions of an internal managerial or administrative nature.
9. Responsibility for ensuring quality and consistency of decisions lies with unit managers. Monitoring quality only after the event is not sufficient.
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Annex 2
Implications of the Equality Act 2010
Report for SMT - October 2010
A. Introduction
1. This report summarises the implication for the SRA of the Equality Act 2010, in relation to the SRA’s regulatory and other statutory functions.
B. Background
2. Group HRD have considered the implications of the Equality Act 2010 (the Act) for the SRA as an employer and on 4 October 2010, circulated an update, listing the main changes to the group employment policies and practices.
3. The Law Society has circulated a practice note to the profession about the Act, which has been favourably referred to by a number of external equality experts.
A hard copy is attached and can be accessed from the Law Society’s website.
4. The core provisions of the Act have been in force from 1 October 2010. The changes to the statutory equality duties will be effective from April 2011.
Although not dealt with in this paper, the provision relating to gender pay reporting will come into force in 2013.
C. Summary of the main implications of the Act for the SRA
5. The following table sets out a number of actions that we are proposing as a result of the Act. For more detail of the changes (set out in the first column of the table) - see section D below.
New changes Actions Proposals for delivery
Protected characteristics and types of discrimination
Detailed training for key staff needs to be delivered urgently, namely: E&D team; legal team; Rule 6 caseworkers.
CLT have been commissioned to provide a bespoke training session for the key staff identified – first session was on 4 October and a repeat session due on 10 November
2010
All staff need general training/awareness of the new Act
Group HRD are proposing general training details to follow
The e-learning E&D training that we are planning to roll out in November
2010 will cover the law as it is under the new Act
SMT had requested training on bias and prejudice to be delivered to all managers and key staff responsible for decision making. Training is being sourced via Pearn Kandola who are business psychologists and have a track record in diversity matters.
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New definition of reasonable adjustments
New public sector equality duty from
April 2011
Positive action
An all staff bulletin with some of the key changes will be circulated before the end of October
There is already a page on Insight covering the key changes introduced by the Equality Act 2010 with links to guides prepared by the government equalities office
An audit of the website and our relevant policies will be completed by the end of November
Update the SRA website/insight and published materials to ensure the correct terminology is used and content is compliant with the new Act
Update the reasonable adjustments policy and staff guidance
Publish a new Equality and Diversity strategy covering our work in meeting the new public sector equality duty
Implement arrangements to ensure compliance with the specific duties
(once confirmed by the government)
Consider to what extent the SRA would wish to consider positive action initiatives
Legal advice has been provided and the policy and guidance will be upto-date when launched to the business
Reasonable adjustments training provided by the E&D team is arranged for October/November
2010 and will cover the new Act
A draft new ‘Equality Framework’ setting out our strategy and vision, the SES and the measurement framework will be provided to the
SMT and than to the E&D Board
Group consideration in December
2010 and published for consultation in January 2011
Retain the current approach (set out in the Equality Impact Assessment toolkit) at least until the end of
March 2011.
Revised approach in light of the new specific duties to be developed and included in the Equality Framework for consultation in January 2011.
In relation to the broader requirement be transparent about engagement, a draft stakeholder engagement strategy will be developed by end of November for approval by SMT/Board and published (with the Equality
Framework) in January 2011
Proposals are being drafted and will to be put to SMT at the end of
November for consideration. This has been developed as HRD has been slow in developing specific proposals in this regard.
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D. Main changes brought about by the Act
Protected characteristics and types of discrimination
6. In order to harmonise the various discrimination strands that have developed under previous legislation the Act has collectively termed them as the
'protected characteristics'. Although they were largely covered one way or another under the previous legislation, they are now defined in the Act (with some changes to the previous definitions). The protected characteristics are:

Age

Disability

Gender reassignment

Marriage and Civil Partnership

Pregnancy and maternity

Race

Religion or Belief

Sex

Sexual orientation.
7. The new definition of direct discrimination also covers a situation where someone is treated less favourably than another person because they are thought to have a protected characteristic (discrimination by perception) or because they associate with someone who has a protected characteristic
(discrimination by association).
8. Indirect discrimination applies to all protected characteristics except pregnancy and maternity and involves the application of a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic and can only be justified if you can show that the policy or practice is a proportionate means of achieving a legitimate aim.
9. In relation to disability, there is a new form of discrimination which is where a disabled person is treated unfavourably because of something arising in consequence of their disability, and this treatment cannot be justified.
10. The duty to make reasonable adjustments is harmonised and extended. The duties on employers, service providers and qualifications bodies used to be worded slightly different but are now the same. The duty applies where
 a provision criterion or practice,
 a physical feature or
 the absence of an auxiliary aid
...puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled. In these circumstances, the person to whom the duty applies must take all reasonable steps to avoid the disadvantage/provide the auxiliary aid.
The public sector equality duty
11. The previous public sector equality duty only applied to race, disability and gender. It will now cover all of the protected characteristics except marriage
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12 April 2011 and civil partnership and requires public bodies to have due regard to the need to:
 eliminate discrimination, harassment, victimisation and any other conduct prohibited under the Act
 advance equality of opportunity between different groups and
 foster good relations between different groups.
12. As before, the Law Society (and therefore the SRA) is covered by the public sector equality duty (in relation to its public functions) and it is proposed that it will also be covered by the specific duties.
13. The government is consulting on the content of the specific duties – these will take the form of regulations which are designed to set specific requirements for public authorities which are intended to help them deliver the overarching general duties. The current specific duties require public authorities to publish an equality scheme and to carry out and publish equality impact assessments among other things.
14. The government is proposing to take a less prescriptive and less process based approach, relying instead on public authorities setting their own equality objectives and publishing equality data to demonstrate their performance in meeting those objectives. Transparency is a key message in demonstrating compliance and progression of equality.
15. The consultation, which closes on 10 November 2010, proposes the following:

A requirement to publish a range of equality data relating both to a public authority’s workforce and to the services it provides – specific requirements will be set for different public authorities. The data is likely to include annual data on important inequalities such as the gender pay gap, the proportion of staff from ethnic minority communities and the distribution of disa bled employees throughout an organisation’s structure.

A requirement to set equality outcome objectives, informed by the evidence and equality data that has to be published
– the objectives must be specific, relevant and above all measurable.
16. The specific duties relating to publishing equality-related data will come into force from the day the regulations are commenced (currently proposed for April
2011) but public bodies will not be expected to publish equality objectives and measures of success until a year after the duties have come into force
(currently this would be April 2012).
17. Some public authorities, although not the Law Society or the SRA, may also have a new duty to consider how their decisions might help to reduce the inequalities associated with socio-economic disadvantage when making strategic decisions such as deciding priorities and setting objectives. The new government is still considering whether to introduce this.
18. The LSB is requiring approved regulators (includes the SRA) to tackle disadvantage associated with socio- economic factors. Their requirements in this area are underpinned by the regulatory objectives and relate to diversity in the profession.
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Positive action
19. The Act expands the scope for employers, service providers and others to take positive action – the provisions are permissive not obligatory. Positive action can involve treating members of a group who share a protected characteristic more favourably than other groups.
20. This will only be lawful if it is reasonably believed by the employer or service provider that the persons who share a protected characteristic:
 suffer a disadvantage connected to the characteristic,
 have different needs from those who do not share it, or
 participation in an activity is disproportionately low.
21. The proposed positive action is lawful, in relation to the group who shares the protected characteristic, if it is a proportionate means of achieving one of the following specified aims:
 enabling or encouraging that group to overcome or minimise that disadvantage,
 meeting the needs of that group,
 enabling or encouraging people in that group to participate in that activity.
Conclusions
22. There is a need for further staff awareness raising and training and for an audit of our policies and web/insight content to ensure that we are fully up-to-date and are using the correct terminology.
23. We will be consulting on a new Equality Framework for 2011/12 which will set out what our responsibilities are under the public sector equality duties – this will contain the equality data that we will be required to publish as well as our equality objectives.
24. Although the specific duties are likely to be less prescriptive, we will still need to be able to demonstrate how we are complying with the public sector equality duty when it comes into force. We propose to continue with our current approach to equality impact assessments at least until we have clarity on the content of the new specific duties. It will be a dangerous message if the new approach to the specific duties is taken as justification for not doing equality impact assessments. We will instead, review how we can revise the EIA toolkit to introduce more flexibility and a more outcome-focused approach
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Public - item 4
Equality and Diversity Impact Assessment
Annex 3
Name of the paper/proposal/policy Decision-making Principles: Principle 1
Karen Sarai Author
Date 16 March 2011
Board/committee it will be submitted to SRA Compliance Committee
Date of submission 12 April 2011
What are the main aims of the paper/proposal/policy?
To amend Principle 1 to reflect the new protected characteristics covered under the
Equality Act 2010 and to amend the relating footnote to detail these protected characteristics.
Is the paper/proposal/policy likely to negatively or positively affect any particular groups?
X Yes No This is not known (please give details below)
The amendments should have a positive impact in relation to equality as it is ensuring that a greater number of groups are protected in line with the new Equality Act 2010 and in terms of engendering confidence in SRA's decision-making processes.
Please indicate if there are any implications on the basis of race, age, gender, disability, religion or belief and sexual orientation.
None.
What are the potential equality and diversity implications?
See above. The amendments should help the SRA to meet its legislative duties.
Has an initial equality impact assessment been carried out?
Yes (please attach to this form) X No (please provide details below on when this will be carried out)
The equality impact has been considered in this document.
If not, when do you intend to carry out an initial equality impact assessment and bring to the committee?
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Board/committee decision and date
Public – Item 4
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Annex 4
BOARD / COMMITTEE RISK ASSESSMENT
Summary of issues for consideration:
(What are the key issues arising from this paper/proposal/strategy?)
Principle 1 to be amended to reflect new protected characteristics covered under the new
Equality Act 2010.
Report is for: Noting / Information Decision Approval
Business/Operational Risk:
(What are the risks and benefits of proceeding with this paper/proposal/strategy?)
Amending Principle 1 will ensure that the SRA is compliant with the relevant equalities legislation and is meeting the public sector equality duty to be introduced from April 2011.
Finance :
(What are the financial implications?)
None
Communications:
(What are the communications implications?)
The amendments will be published and guidelines updated on the SRA website following approval from the Compliance Committee.
Equality & Diversity
(Summarise the equality and diversity implications, which should be set out in more detail in the Board paper and confirm if an equality impact assessment report is annexed to the Board paper, and whether it has been quality assured by the Inclusion directorate)
It is anticipated that the amendments will have a positive impact on equality, diversity and human rights.
Author: Karen Sarai
Date of report/paper to which this risk assessment relates: 16 March 2011
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