Loading...

Decision-making framework

Last updated 20 January 2012

Introduction

  1. This framework has been designed for use by staff who make formal regulatory decisions affecting those we regulate. It is intended to provide an overview of the features common to decision making and which underpin it. By formal decisions we mean essentially those that are final or determinative and which, usually, can be subject to an appeal.
  2. We make many "in process" or operational decisions such as to start an investigation or to require information or evidence to be produced to us. This framework does not apply to in-process "decisions" although they too must be made fairly and with appropriate transparency.
  3. In everything we do, we have to act compatibly with the "regulatory objectives" contained in the Legal Services Act 2007. What that means is discussed below.
  4. Fair and effective decision making is a crucial part of our work in protecting the public and it is essential that fair, proportionate and timely action is taken where appropriate and necessary. This is important for several reasons:
    • To ensure the public is protected from those who present a risk;
    • To uphold standards and maintain confidence in the delivery of legal services;
    • To provide a credible deterrent to those who fail to deliver appropriate outcomes;
    • To maintain confidence in the fairness of regulation.

Overall requirements

Fairness

  1. All of our decisions must be fair and seen to be fair. Fairness is a theme throughout this framework and is pervasive to everything we do. In any decision we make, we should always ask ourselves whether ultimately the process and the decision have been fair.

Clear principles and criteria

  1. Any framework to enable good decisions to be made requires an organisation to have clear principles and criteria. We must act compatibly with the regulatory objectives in the Legal Services Act 2007 (LSA) and they are supported by our:
  2. Diagram 1 - relationship between LSA and principles and criteria

    This diagram shows that the SRA Handbook, the principles, the 11 principles of decision-making, the decision-making policy and criteria all stem from the Regulatory objectives set out in the Legal Service Act 2007).
  3. Diagram 1 shows how the principles, policies and criteria are integral to the way in which we operate and promote a transparent and consistent decision-making process. These are discussed in more detail in section 3.

Completeness of information

  1. The quality of information provided to decision makers is critical to good decision making.
  2. The information provided needs to be relevant and sufficiently complete for each type of decision made.
  3. We have powers to seek information and decision makers can properly ask for more information if they consider it necessary in making a full and fair decision.

Documenting decisions

  1. The decision itself and the information that was taken into account must be properly recorded.
  2. All decisions must be written and supported by an analysis of information and reasoning.
  3. The reasons required are proportionate to the importance and complexity of the particular matter.

Transparency

  1. The evidence we rely upon to reach a decision will usually be disclosed to the regulated person or entity (in advance of the decision being made, to enable them to comment). In some cases it may not be possible to disclose information, but this is exceptional and the regulated person or entity is usually informed of any non-disclosure.

Competence and expertise

  1. Decision makers will be appointed or nominated by managers according to their competence, skills and abilities. The process of decision making is dealt with further below.

The legal framework

  1. The LSA introduced overarching regulatory objectives. We are required, in so far as is reasonably practicable, to act compatibly with them.
  2. The Explanatory Notes to the LSA 2007 make it clear that there is no hierarchy of objectives. The objectives are to:
    • a) protect and promote the public interest;
    • b) support the constitutional principle of the rule of law;
    • c) improve access to justice;
    • d) protect and promote the interests of consumers;
    • e) promote competition in the provision of [legal] services;
    • f) encourage an independent, strong, diverse and effective legal profession;
    • g) increase public understanding of the citizen’s legal rights and duties;
    • h) promote and maintain adherence to the professional principles.
    The professional principles referred to in (h) are that:
    • (a) authorised persons should act with independence and integrity;
    • (b) authorised persons should maintain proper standards of work;
    • (c) authorised persons should act in the best interests of their clients;
    • (d) persons who exercise before any court a right of audience, or conduct litigation in relation to proceedings in any court, by virtue of being authorised persons should comply with their duty to the court to act with independence in the interests of justice; and
    • (e) the affairs of clients should be kept confidential.
  3. The LSA also requires us to have regard to the better regulation principles which it describes as:
    "the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed". It also requires us to "have regard to any other principle appearing to us to represent the best regulatory practice."

    These principles should be second nature to us already.

  4. It is impractical to refer to the regulatory objectives and the better regulation principles in every decision. They are more likely to be specifically addressed as part of policy making. For individual decisions, they should always be kept in mind but they should generally be reflected in the principles, outcomes, rules and policies we are applying rather than being directly relevant to the facts of a particular case.
  5. The regulatory objectives are likely to be referred to by those we regulate when they try to persuade us to their point of view. They may well be presented to us by some as allegedly in conflict: for example, an argument may be that increased competition will reduce the number of law firms and damage access to justice. It is unlikely (but not impossible) that an individual decision would need to engage closely with such arguments and if they arise, they should be (or have been) referred to Legal and Enforcement for advice by the individual dealing with the matter.
  6. Essentially, those making decisions in individual cases should always have the regulatory objectives and better regulation principles in mind but express reference to them may not be necessary because the answer to the case should lie in the Handbook (which is compatible with those objectives and principles).
  7. Also relevant to many decisions are the SRA Principles in the Handbook which embody the key ethical requirements on firms, individuals or those who are involved in the provision of legal services.
  8. Protecting and serving the public interest is ultimately at the heart of our decision making and the Principles define the fundamental ethical and professional standards we expect of all firms and individuals providing legal services.
  9. Where we need to take action, our approach to enforcement is proportionate, outcomes focused and risk based, as set out in our Enforcement Strategy.

General principles

  1. In addition to our Legal Services Act obligations (to act in accordance with our regulatory objectives and to be transparent, accountable, proportionate consistent and targeted) we must comply with the Human Rights Act and common law principles of natural justice and act in the public interest. These legal obligations overlap with and complement our obligations as a regulator and together encompass three general principles: proportionality, fairness and acting without bias.

Proportionality

  1. Ensuring that a measure imposes no greater restriction than is absolutely necessary to achieve a legitimate objective.

Rules of fairness

  1. Fairness will often require that a person who may be adversely affected by a decision will have the opportunity to make representations on his/her own behalf either before the decision is taken, with a view to producing a favourable result, or after it is taken, with a view to procuring its modification, or both.
  2. The regulated individual should know what the decision maker is basing his/her decision on. They should not be taken by surprise and all material submitted should be taken into account.
  3. Before making any decision, the investigator and decision maker should take all reasonable steps to ensure that all persons who will be particularly and materially affected by a decision have been informed in sufficient time of our intention to make a decision and should afford all those persons a reasonable opportunity of making representations.

Acting without bias

  1. The framework we have in place for decision-making is also designed to help us make sure that we do not let conscious or unconscious bias creep in to our decision-making and, of equal importance, that our decisions are seen to be free from bias.
  2. A biased decision is one which has been influenced by assumptions or prejudices which cannot be justified on the evidence and may favour or go against the individual concerned. The test we apply is whether a fair minded and informed observer, having considered the facts, would conclude there was a real possibility of bias.
  3. We manage conscious and unconscious bias by emphasising the importance of treating each case on its own merits and not making any assumptions about individuals. The key elements of decision-making set out above guide decision-makers to focus only on the relevant criteria and to ensure there is complete information available. They must ensure that decisions are documented and based on a reasoned analysis of the evidence and that the process is transparent.
  4. We have systems in place to instil confidence that our decisions are free from bias, and these are set out in the sections headed Our approach to decision making and Good decision making in the SRA below. These systems include the separation of decision-making from investigation where we can and making sure that decision-makers will declare any conflict of interest and remove themselves from the cases where appropriate.

Human Rights

  1. As a public authority, we have a duty to act in compliance with the European Convention on Human Rights and to the specific provisions of the Human Rights Act 1998. The rules and requirements of the SRA Handbook have been assessed for compliance with the Human Rights Act but we must exercise our judgement in the way that we apply the Handbook and carry our regulatory functions in each case. Some human rights are enjoyed by firms or companies as well as individuals, for example the right to a fair trial, or the right to property but other are not such as the right to respect for a private and family life.
  2. There are four particular articles of the Human Rights Act which are likely to be engaged in our regulatory activity, including our decision making. Our decision making framework will help us make sure that our decisions are compliant with these human rights by building in the required checks and balances to our decision making.

Article 1 of the First Protocol - Right to peaceful enjoyment of possessions

  1. Individuals and firms have the right to peaceful enjoyment of their possessions and this includes the right to practise one's profession and the economic interests connected with running a business. It will cover interventions, the practising regulations and other parts of the Handbook designed to regulate how a firm or individual may practice.
  2. This is a qualified right, so there is no breach of this right if we act in accordance with the law, and our action is proportionate and in pursuit of a legitimate aim. There is also a public interest test which means that a fair balance must be struck between the general interest in interfering with the right and the individual's right to peaceful possession.

Article 6 - Right to a Fair Trial

  1. Article 6 applies to those proceedings where civil rights and obligations are being determined, for example it will apply to disciplinary proceedings against an individual, interventions, and to authorisation decisions.
  2. In summary, Article 6 requires us to follow the rules of fairness as described above in the overall process we apply for determining those civil rights and obligations. It is not necessary to be compliant with Article 6 at every stage of the process, provided there is a right of appeal which is compliant and has full jurisdiction on facts and law.

Article 8 - Right to respect for private and family life, home and correspondence

  1. Article 8 applies to many areas of our regulatory work and 'home' may include a firm's office and correspondence between solicitors and clients. We should be aware of Article 8 when we are investigating alleged misconduct or when we are publishing our disciplinary decisions. Also when we are carrying out firm visits and inspections, or where we are requiring the individuals to provide information for example about previous convictions to help us determine whether they are of the required character and suitability for admission to the roll.
  2. Article 8 is a qualified right, which means that there will be no breach of the right if we act in accordance with the law, and our action is proportionate and in pursuit of a legitimate aim. Acting in accordance with the law will include actions taken in accordance with the rules and regulations in the SRA's Handbook.

Article 14 - prohibition of discrimination

  1. If an individual alleges a breach of any of the convention rights he or she may also add an Article 14 claim. A person cannot bring a "free standing" Article 14 claim, it can only be used alongside one of the other convention rights. For example, it may not be a breach of a person's right to privacy if we published details of the disciplinary sanction imposed on them but it could be a breach of Article 14, if we only published decisions against solicitors qualified overseas.
  2. Article 14 says that all convention rights should be enjoyed free from discrimination. The scope of the protection against discrimination is much wider than the "protected characteristics" in the Equality Act, including for example discrimination on grounds of language, political or other opinion and the grounds listed are not exhaustive.
  3. There will be no breach if the action taken is a proportionate means of achieving a legitimate aim.

Our internal decision-making system

Formal delegation

  1. Decisions have to be taken by people with the formal authority to do so. We "delegate" authority to particular roles to achieve this. Delegations are a key element in effective governance and management.
  2. The fact that a decision can be taken by a person in a particular role does not automatically mean that everyone in that role should make such decisions. Managers must be satisfied that individuals are competent to make such decisions.
  3. Our Schedule of Delegations sets out who can make particular decisions. Our powers come from legislation such as the LSA, the Solicitors Act 1974 and the Administration of Justice Act 1985 and are delegated to us by the Law Society General Regulations which set our Board’s terms of reference. The Schedule of Delegations has been approved by the Board and is published.

Our principles of regulatory decision making

  1. Our Board updated and approved 11 principles for regulatory decision making by staff in April 2011. They contain the standards we apply to our decision making across the SRA.

Our decision-making guidelines

  1. We seek to demonstrate that we are a fair regulator and that decisions are made based upon an objective analysis of the evidence and without unlawful discrimination.
  2. We also have specific decision making criteria for particular types of decision.
  3. Decision makers will apply relevant law, principles, policy and criteria. Decisions should not unfairly and adversely impact on any particular groups within those we regulate and we monitor the quality, consistency and fairness of decisions made as well as reviewing the effectiveness of processes and procedures put in place to support decision making.
  4. Decision makers are required to provide reasons, and a justification for the decision. The detail of the reasoning is dependent on the complexity of the case and proportionate to the impact of the decision upon a firm or individual, taking into account whether it is part of a wider process within which detailed reasons will be provided at final decision stage.
  5. The decision maker will exercise appropriate judgement in deciding upon the outcome and, being satisfied that the action taken is proportionate to the individual circumstances of the case including the need to protect public confidence in the delivery of legal services.
  6. All decisions with reasons are recorded and must be notified in writing to the firm or individual concerned.
  7. Some decisions made after 1 January 2008 may be published in accordance with the SRA Publication Policy.

Our approach to decision making

  1. As described above, this Framework applies to formal, appealable decision making and does not impact directly upon in-process decisions such as, for example, asking for information that does not result directly in a formal decision. A desire on the part of Authorisation and Supervision to hold exploratory meetings is not affected by this process although there are different requirements to ensure that:
    • a. The nature of meetings, their scope and what is recorded needs to be clear;
    • b. It may often be necessary to have a formal decision taken by someone not involved in meetings—to avoid allegations of improper influence or that others who may want to challenge the decision cannot be sure what was truly taken into account;
  2. The requirements of fair formal decision making can depend on the context, including the impact upon the public interest and upon the rights of the applicant/individual. The principles of regulatory decision making state that there is 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. It is the responsibility of managers to ensure decision makers have the necessary skills and training to make the decision.
  3. Formal decision making should generally involve:
    • (a) separation between the front-line staff who have dealt with a matter and the formal decision maker. However, some decisions will fairly be made by front-line staff who have dealt with the matter on a day-to-day basis where the decision is uncontroversial or of low impact.
    • (b) a fair, balanced and documented assessment or investigation leading to the decision or referral to the decision maker (in the latter case this will be clear from the report and papers provided to the decision maker);
    • (c) full advance disclosure to the applicant/respondent of the information to be considered by the decision maker;1
    • (d) a proper opportunity for the applicant/respondent to comment upon the information;
    • (e) carefully recorded reasons, proportionately dealing with the issues including the arguments put forward by the applicant/respondent.

    1There may be highly exceptional circumstances in which very sensitive material or its "gist" can be taken into account without full disclosure: that can only occur on the basis of legal advice.

  4. First decisions will be made without referral to adjudication unless it is appropriate that adjudication should make the decision in accordance with set criteria (section 6). To maximise impartiality, adjudication should always have been involved in a matter before it goes to external appeal 2:
    • (a) If a first decision is taken by a member of staff, appeal should be to adjudicator or perhaps, pursuant to criteria such as complexity, seriousness etc, to the adjudication panel sub-committee;
    • (b) If a first decision is taken by adjudicator, appeal is to the adjudication panel sub-committee.

    2This may be subject to some circumstances where a first decision internally can be appealed directly to an external body because we cannot force the person to follow the internal appeal procedure.

Good decision making in the SRA

  1. Decisions can only be made in accordance with the level of delegated authority in the Schedule of Delegations. We have produced criteria as to the level of decision maker which are set out in the criteria as to level of decision maker.
  2. Diagram 2 shows the process to be followed by a decision maker.

This diagram shows the process for decision maker: identify an issue, apply relevant process rules, analyse the data, set out the findings and then set out the reasons for determining the outcome, repeat  

  1. The integrity of decision making requires that decisions are made in such a way that they can, if appropriate, be publicly explained and justified, including scrutiny of the relationship between facts, rules and decisions, while protecting the privacy and confidentiality of individuals involved.
  2. Those who are dealing with a case and decision makers must not be biased, or appear to be biased, towards anyone involved with, or who has an interest in the decision. They must be impartial. The test for possible bias is very strict. A member of staff asked to make a decision should ensure that they have no personal interest in it such as personally knowing the people involved.
  3. The decision maker is ultimately responsible and accountable for the decision he/she makes and should take into account only formal provisions and published criteria and will not be influenced or directed to make a particular decision by anyone else in the SRA.

Outcomes-focused regulation

  1. Decision making is very much part of our outcomes-focused approach.
  2. Our Enforcement Strategy encourages engagement with those whom we regulate to help them achieve proper outcomes, by giving advice, guidance and agreeing compliance plans, where appropriate.
  3. However, where firms either fail to engage constructively or significant risks are posed, then enforcement action will follow because we must provide a credible deterrence against risk to the public.
  4. Overall, outcomes-focused regulation requires us to focus on delivery of the high level principles and outcomes that should drive the provision of service for clients. It is designed to enable those who are regulated to put clients first where this does not prejudice the public interest. It is about achieving the right outcomes for clients, being flexible and is a move away from prescriptive rules wherever that is appropriate.
  5. Our approach to authorisation, supervision and enforcement is based on an assessment of risk, proportionality and targeted to enable concentration on those who cannot or do not manage their risks.

Adjudication and general decision-making responsibilities

  1. The Compliance Committee statement of June 2011 sets out best practice for Adjudicators and decision makers) confirming that their function is to decide upon matters referred to them by the operational units of the SRA. Decision makers and Adjudicators are part of the internal decision making structure of the SRA.
  2. Decision makers and Adjudicators are required to reach decisions fairly, objectively, in the public interest on the evidence before them and in accordance with best practice in the promotion of equality and diversity. They will not be influenced by other individuals (internal or external to the SRA) other than in accordance with normal practice or policy.
  3. Adjudicators and Decision-makers will not take into account any material that might influence their decision that has not been formally put before them and disclosed where appropriate for representations to be made.
  4. In particular, decisions should be:
    • (a) Fair to all individuals and groups regardless of their ethnic origin, race, colour, gender, religion or belief, disability, sexual orientation, gender reassignment or age;
    • (b) Proper in their application of SRA rules and policies; and
    • (c) Consistent.
  5. Adjudicators and Decision-makers must apply SRA rules and have regard to written policies and the decision-making criteria.
  6. Directions in individual matters may be given to ensure that they are decided fairly and competently but it is not the function of an adjudicator or decision maker to direct how in investigations should be carried out.
  7. It is good practice for decision makers and Adjudicators to meet from time to time for training purposes and to discuss other matters of interest.
  8. In relation to an individual decision, any communications between the operational unit investigating the matter and Adjudicators should be indirect ( through the Adjudication Administrator or a panel secretary) and disclosed where appropriate. Frontline staff should not discuss or refer to the merits of a case with adjudicators or decision makers.

Reconsiderations and appeals

  1. Our Reconsideration Policy is also replicated in some of our Rules. The policy is intended to enable us to correct errors and to rescind a decision which is clearly wrong and needs to be put right quickly. That can be very important either to relieve a regulated person of the impact of a challengeable decision (without having to incur the cost of a judicial review or appeal) or to ensure that the public is protected.
  2. Many reconsiderations are straightforward. The affected person points out an error in the process, for example that relevant documents were not provided to the decision maker and both we and the regulated person are content that the matter is reconsidered.
  3. Very occasionally, it may be appropriate to reconsider a decision because, although the regulated person may be content with it, we consider it to be wrong (pursuant to the relevant rules or policy). Fairness and certainty in decision making require us to deal with such matters very carefully indeed. Disagreement with the decision is certainly not enough to justify seeking a reconsideration. There must be a serious public interest in the decision being reconsidered and the process must be transparent to enable the regulated person to challenge the decision to reconsider if he or she wishes to do so.
  4. Our principles of regulatory decision making require all final decisions to be the subject of some form of internal appeal or review. If a final decision is made within unit, the appeal will be to the adjudication function and if the first instance decision is made by an adjudicator, the appeal will be to a panel of adjudicators. The table below shows the appeal mechanism.

Review / Appeal Mechanism

Decision maker Adjudicator Adjudication Panel Sub Committee External appeal (if available)
Staff X  
Adjudicator   X  
Adjudication Panel     X
  1. Our rules and regulations generally provide for at least one internal review or appeal mechanism before external appeal to a tribunal or the High Court.

Quality assurance and risk

  1. We are committed to:
    • a programme of quality assurance (QA) for regulatory decision making and decision-making processes,
    • ensuring the quality (i.e. fairness, transparency, consistency and proportionality) of our decision making;
    • ensuring that decision making should be subject to QA and audit.
  2. We have in place a change control process for new decision-making criteria and amendments to decision-making criteria.

Equality and diversity

  1. We are fully committed to fairness in decision making and in particular ensuring that we do not discriminate.
  2. Decision-making criteria are subject to equality impact assessment.
  3. We must ensure that we remain aware of our duties under the Equality Act 2010 at all times. We must, in the exercise of our functions, have due regard to the need to:
    • Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act.
    • Advance equality of opportunity between people who share a protected characteristic and those who do not.
    • Foster good relations between people who share a protected characteristic and those who do not.
  4. These are sometimes referred to as the three aims or arms of the general equality duty. The Act helpfully explains that having due regard for advancing equality involves:
    • Removing or minimising disadvantages suffered by people due to their protected characteristics.
    • Taking steps to meet the needs of people from protected groups where these are different from the needs of other people.
    • Encouraging people from protected groups to participate in public life or in other activities where their participation is disproportionately low.

Human rights and fairness

  1. The need to act fairly runs through all that we do and throughout this framework document.
  2. It also means that we must have regard to important principles such as:
    • proportionality - ensuring that our approach imposes no greater restriction than is absolutely necessary to achieve our objectives
    • impartiality - considering all representations and ensuring separation between the investigator and decision maker
    • no perception of bias - ensuring that a fair minded and informed observer, having considered the facts, would not conclude that there was a real possibility the decision maker was biased.

Equality impact assessment

As part of the programme to update the decision-making material, an equality impact assessment has been published.