Peter Herbert: Who regulates the regulator?


This month, leading human rights barrister, Peter Herbert OBE, is leading one of the most important cases he has dealt with – racism within the Criminal Justice System.

The disproportionate use of stop and search on BME communities and disproportionate sentencing practices are all well documented, but little is known in the public domain about the systematic racial sentencing by the Solicitors Disciplinary Tribunal of African Caribbean and Asian Solicitors.

According to Herbert,

“solicitors of African-Caribbean origin are six times more likely, and Asian solicitors three times more likely than their white counterparts to be investigated by the Solicitors Regulation Authority (SRA)."

Herbert argues that even BME representatives at the higher rungs of the societal ladder have encountered this disparity of treatment. The report, Breaking the Silence: who is regulating the regulator?, was compiled in response to the Legal Services Board’s call for views on proposed equality objectives, based on minority ethnic solicitors’ dealings with the SRA over the past 18 months.

One key facet in the disparity level of investigations seems to be rooted in the size of law firms, which curiously bears a significant relationship to ethnicity. Law Society statistics show that ethnic minority solicitors in private practice are 'significantly over-represented' in the smaller high street firms when compared to white Europeans, and that 23.9% are partners, compared to 43% of white solicitors. Furthermore, almost one in ten ethnic minority solicitors is a sole practitioner, compared to just one in 20 white solicitors. In relation to the SRA investigation, Herbert argues that,

“City firms and those with more than 26 partners appear completely immune from such investigations. This is all the more remarkable as they employ over 50% of the profession and generate the largest financial turnover. Those firms however, have an overwhelmingly white, middle-class profile and are over-represented on the committees and council of the Law Society.”

Those statistics heavily imply that there is indeed a degree of racism. However, it is plausible to make the argument that the SRA simply discriminates against the size of the firm as opposed to ethnicity. This is inferred from Lord Ouseley’s 2008 report which in summary concluded that there were no signs of institutional racism within the SRA.

Lord Ouseley’s report according to Herbert was blighted through no fault of his own and gives a skewed view. Herbert said,

“I think Lord Ouseley failed to conduct a comparative analysis of interventions against minority and white solicitors. He could only analyse what he was given based on the assumption that the SRA investigators were acting in good faith. We now have strong grounds to believe this was a false premise. The SRA did not tell him how many discrimination actions it has faced so that he could examine them and track their outcomes. He was also not told about discrimination claims brought internally by SRA staff. For these reasons, the Ouseley review was flawed.”

As a result of this, a new review is primed to go ahead, and its findings will be available to the public by the 31st October 2012. Herbert said, that he hopes the new review will,

“have the full support of the Attorney General and Solicitor General; and be carried out by persons with robust attitudes towards race discrimination.”

The implications of this case are significant and OBV will watch attentively as Herbert courageously fights to ensure that justice and equality before the law also applies to its legal custodians.

Fortune Achonna and Francine Fernandes

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