Stomping the Moral High Ground

May 1, 2014 in Blog by Gus John

On 21 February 2014, I submitted to the Solicitors Regulation Authority (SRA) my report of the independent comparative case review they had commissioned in 2012 with the following terms of reference:

“to identify whether there is disparity in the way the SRA applies its policies and procedures in dealing with BME practitioners as compared to others with a view to identifying potential improvements to such practices, policies and procedures to maximise fairness and consistency.”

The report was published on 13 March 2014. In their Press Release, the SRA said:

The 248-page report is the result of one of the most extensive pieces of independent research and analysis into regulatory outcomes for BME solicitors and builds on work previously commissioned by the SRA from Sir Herman Ouseley (2008) and Pearn Kandola (2010). The review comprised:

  • a statistical analysis of regulatory outcomes by ethnicity and gender;
  • a comparative case file review;
  • a review of a sample of cases where discrimination had been alleged and
  • surveys, focus group sessions and follow-up interviews with a range of individuals and groups, including solicitors who had been subject to regulatory action and those who defend themselves in the Solicitors Disciplinary Tribunal (SDT).

On 20 March 2014, the Equality Implementation Group issued a press release with the banner headline:

THE EXTERNAL (EQUALITY) IMPLEMENTATION GROUP (EIG) REJECTS THE REVIEW BY PROFESSOR GUS JOHN.

That group was formed in 2008 following Lord Ouseley’s report to the SRA on regulatory disproportionality in its regulation of BME practitioners in order to work in partnership with the SRA on the implementation of the Ouseley recommendations. The group comprises:

1)    The Society of Black Lawyers

2)    The Black Solicitors Network

3)    The British Nigerian Legal Forum

4)    The Society of Asian Lawyers

5)    The Association of Muslim Lawyers

6)    The Turkish British Legal Society

The EIG press release was signed in the following order by:

D. Peter Herbert O.B.E., Chair of the Society of Black Lawyers (SBL)

Nwabueze  Nwokolo, Black Solicitors Network (BSN)

Ismet P Rawet, Association of Moslem Lawyers (AML)

Emma Edhem, Turkey British Legal Society (TBLS)

I had been meeting with members of the EIG and providing them with regular updates throughout the course of the review. Members of the EIG could have written to me, collectively or individually, to share their reactions to or concerns about my report. They all chose not to do so. The Press Release was not sent to me, nor was it cleared with or sent to Lord Ouseley who chairs the Group.

What is most despicable is that in sending the Press Release to their members, the SBL claimed that ‘Gus John must have received his 30 pieces of silver’, the inference being that I accepted bribes from the SRA in return for not finding them guilty of race discrimination.

The Press Release presents statistics on the impact of regulatory action on BME solicitors and then states:

‘Professor Gus John explains these appalling statistics, without any evidential basis or empirical data that the reason for the BME over representation at every stage of the disciplinary procedure is due to a lack of “cultural capital” which can only be obtained by attaining an Oxbridge degree or working for a large city firm. The EIG emphatically rejects this analysis as being fundamentally flawed (…)

Lord Ouseley’s damning report of 2008 spoke of a “lack of leadership” and “a culture of bias” against minority solicitors leading to a disproportionate number experiencing serious interference with their professional practice and reputation. Lord Ouseley’s recommendations include a significant overhaul of the way in which the SRA operates with an action plan to address a whole range of issues raised. The EIG continues to be seriously concerned at the sheer numbers of BME solicitors being processed by the disciplinary system’.

The kindest thing that can be said about the illiterate rantings of the EIG in that press release is that they did not bother to read the report before framing their response. For a body of people who are supposed to be lawyers and as such could be presumed to have a concern about accuracy and evidence, if not about truth, their press release has all the appearances of speaking to a completely different agenda than responding to what my report actually says.

The conclusions and recommendations in my report are based upon the evidence the review gathered and analysed, including from solicitors who had been regulated, senior regulatory lawyers who advocate on behalf of respondents, regulatory lawyers acting for the SRA and solicitors who had not faced regulation.

The EIG’s assessment of my report is such a caricature of the presentation of that evidence and the findings derived from it as to be a complete travesty. It would appear that because the report does not say what the members of those six practitioner groups wanted it to say, i.e., that BME disproportionality is on account of the racism of the SRA, never mind the evidence, they consider themselves to be at liberty to rubbish it.

It is not my intention here to answer the wild and baseless claims the EIG is making in their press release. Rather, as the title of this statement suggests, I want to examine the evidence of professional standards of this radical and anti-racist EIG that purports to claim the moral high ground in the struggle against racism and in research methodology and ethics. Since the ‘leader of the pack’ in this game appears to be the Society of Black Lawyers (SBL), I venture to make certain connections between a number of encounters that I, as the author of the Independent Comparative Case Review report, have had with the SBL since this review commenced.

Terms of Reference

The Gus John Consultancy was appointed in July 2012 to conduct the review and was provided with draft terms of reference on which the SRA was consulting with members of the EIG. There was protracted discussion around one issue which for members of the EIG was central to the very purpose of the review, i.e., whether some 14 regulated cases in which discrimination on the part of the SRA had been alleged in the course of the regulatory process, or in appealing the outcome(s) of that process would be reviewed in their own right.

The SRA took the view that since some of those 14 cases were still live, it would not be appropriate for them to be reviewed. In relation to the rest, since it was not part of the remit of the review to go behind the decision of the tribunal or court and conduct a review of any one case that might result in a different outcome, it was not appropriate for the review to extend to those 14 cases.

Eventually, a decision was taken that the review would begin by examining two cases in which discrimination had been alleged and about which there was particular concern in order to identify issues that might help to inform the approach to the main review, including the methodology most appropriate to the terms of reference. A proportion of the 14 cases would then be reviewed and reported upon as part of the main study.

The terms of reference were finally agreed by the EIG in November 2012 and included the following:

As far as any live cases amongst those in which racial discrimination is alleged are concerned, the reviewer has agreed that it is not the purpose of the review to ‘seek to go behind or undermine the findings of a court or tribunal’. The reviewer will conduct any review of a case in the same manner that he approached the 2 cases already reviewed and in keeping with the principal purpose of this review, i.e., to establish whether there is disparity in the way the SRA applies its policies and procedures in dealing with BME practitioners as compared to others with a view to identifying potential improvements to such practices, policies and procedures to maximise fairness and consistency. Cases in which there is continuing substantive regulatory or legal action (such as proceedings against the SRA or substantive appeals) will not be included. However, if the continuing issues are not substantive (such as the amount of costs to be ordered or paid; or an application for permission to appeal), the case is within the group of cases which the reviewer may consider.

In view of possible continuing legal proceedings (such as appeals or satellite litigation) the review, including any reports, will not attribute any of its content to a specific or identifiable case or individual. Nor will the review seek to go behind or undermine the findings of a court or tribunal. The reviewer is not carrying out a legal review of cases but as noted above is identifying potential improvements to practices, policies and procedures to maximise fairness and consistency. The reviewer has the benefit of legal expertise in his organisation but may seek advice from a regulatory lawyer (who does not generally act for or against the SRA) if reasonably necessary. The reviewer may seek clarification from respondents if reasonably necessary to fulfil the terms of reference. 

Despite signing on to the terms of reference, however, the Society of Black Lawyers kept insisting throughout the review that I should examine cases that were still live and in which legal action involving respondents and the SRA was still in train. SBL was especially concerned that the review should examine two cases in particular, that of Shahrokh Mireskandari (in Los Angeles) and Paul Baxendale Walker (UK). SBL provided me with documentation relating to both of those cases and alleged discriminatory and other illegal practices by the SRA. Not only did those cases fall outside the terms of reference and overall scope of the review, but even a cursory examination of the background papers suggested that both were so very complex that it would have required substantial financial resources and a considerable amount of time to investigate them alone, in addition to the agreed case review sample. This should have been obvious to SBL, especially as their Chair had an active involvement with the Mireskandari case, at least. In any event, I made it clear to Peter Herbert that it was not possible to examine those cases as part of the review.

In spite of that, however, on 1March 2014, I was sent a letter by SBL, signed by Peter Herbert O.B.E which noted among other things that:

  • It was SBL’s understanding that I had met only two solicitors that initially alleged race discrimination out of the 14 cases that the SRA belatedly informed the EIG about in April 2012;
  •  It would appear that my review would be substantially undermined as to its cogency if I was unable or unwilling to meet those that were the first to allege racial discrimination;
  • That in SBL’s view, the cases such as that of M O are very clear examples of disproportionate and discriminatory treatment;
  • In particular, SBL urged me to consider two cases, namely that of solicitor Pritpal Chahal which came before Birmingham Crown Court in the spring of 2013 and the way in which the SRA has conducted litigation against Mr Mireskandari and Mr Baxendale-Walker in California and the UK. The SBL  noted its deep concern  that to date no contact appeared to have been made with any of these individuals despite contact information being provided to the review.

It would appear that although they, like the other members of the EIG, eventually agreed the terms of reference for the review, the SBL expected the review to ignore those terms of reference and conduct a general investigation of the SRA and its treatment of BME solicitors, including the forensic examination of every case in which racial discrimination was alleged.

Secret Recordings and Exaro News

On 20 November 2013, I had cause to send the following letter to members of the Society of Black Lawyers:

This elicited a response from one member of SBL who expressed ‘deep concern’ about the whole affair and especially SBL’s apparent endorsement of the sending of secretly taped conversations to the media. Significantly, it triggered a response from the Chair of SBL in the following terms:

  • That he was not Ms Lathar’s legal adviser whatever may have been reported to me by her or anyone else. Neither I nor the SRA had ever received any communication from him, oral or written, purporting to perform that role on her behalf. SBL had at times supported her as they had several others ‘as part of our campaign and no more’.
  • That he had been informed after the fact that there had been a tape recording produced. Any publication was the sole reponsibility of Ms Lathar and not SBL. That the publication was not done by or on behalf of SBL or under its direction or control.
  • That, for the record, he did not “tweet’’ and did not have a twitter account.  Any private comments to Ms Lathar about my inquiry were made on the basis that I was not being given full access to SRA files and my terms of reference were being re defined by the SRA. That did not come as a surprise.
  • That the SRA had already hidden the number of race discrimination cases until April 2010 when forced to disclose the same by a Freedom of Information request from the SBL. That the internal SRA Lord Ouseley report on discrimination in the SRA was also hidden from the EIG for a period of 18 months until April 2012.
  • That given that history and the continued pursuit of legal proceedings against all solicitors that had claimed discrimination it was likely I would face the same barriers and obfuscation by the SRA.
  • If they were wrong and the SRA had not undermined my report by their actions, then SBL  would be delighted.  I should by now know the serious damage caused to people such as Ms Lathar, John Robinson, Pritpal Chahal and many others where white solicitors have not been challenged.

He believed the target of SBL has always been the SRA given that SBL was largely responsible for my appointment to conduct the review in the first place.

He did not choose to respond to the general or personal comments. Since I, Gus John,  was not a member of SBL  he would appreciate it if I did not contact SBL members directly in this manner in future.

That I was well aware that the SRA had sought to limit my report from the outset and specifically refused to have race discrimination looked in any case where a court had failed to see any.

That how I chose to write my report was a matter entirely for me but neither the process nor the report itself is a matter that is my personal property.

The legal community can comment on the willingness or otherwise of the SRA to co operate with me and to action any recommendations I make (…)

That I (…) omit to mention (that Nina Lathar) was subject to negligent and possibly fraudulent advice from the Solicitors Assistance Scheme as were many others when they falsely claimed to have alerted the SRA but failed to do so.

That my integrity and reputation would remain unchallenged if the SRA has failed to influence my report.  He sincerely hoped that was the case.

Alleged Conflict of Interest

On 16 March 2014, Nina Lathar wrote to my colleague and member of the review team, Anthony Robinson, saying among other things that in previous conversations between them, Anthony Robinson had been kind enough to offer her the opportunity to work with and Professor Gus John in setting up a regulatory defence department. However, she was not surprised not to hear from him further once the Exaro article came out. She had ‘read the race review’ in which Professor Gus recommends contact details of other regulatory solicitors to be put in place on equal footing with the Solicitors’ Assistance Scheme. Surely, with the intention that Professor Gus has to set up with you, there is a conflict of interest here in him making such recommendations?

Lo and behold, in their Press Release, among the 12 ‘flaws in the report’ the EIG lists is the following:

  1. The suggestion that the Solicitors Assistance Scheme (SAS) be supplemented by another organisation appears to provide a conflict of interest situation if any member of the Review team is seen to seek involvement in that service provision.

EIG members and SBL in particular would have us believe that there is no connection whatsoever between Nina Lathar’s note to Anthony Robinson and this identified ‘flaw’.

So, what does my report actually say:

As far as the SAS is concerned, practitioner networks represented on the EIG questioned the SRA’s continuing practice of drawing respondents’ attention to the SAS only, as a possible source of support and advice (15.2, 15.3 above).  This led the SRA in May 2013 to alter its advice on ‘Support’ for solicitors facing regulatory action. Paragraph 17 of the letter the SRA sends to solicitors/firms notifying them of its intention to move to a formal investigation now states:

‘Please note there are various sources of advice and support, which can be found by going to the following link on our website: www.sra.org.uk/support

This link takes one to the ‘Support’ section of the SRA’s website under which are listed 10 ‘sources of support and contact details’, the SAS appearing in ninth place on that list.

Nowhere, but nowhere, in that report is it remotely suggested ‘that the Solicitors Assistance Scheme (SAS) be supplemented by another organisation’.

My understanding is that in a conversation with Nina Lathar, Anthony Robinson suggested that she could work with him in undertaking regulatory work. He made that suggestion to her because, at the time he wanted to see if it were possible for her to revive your career and do something that she had become passionate about. In other words, he hoped that the mediation I was recommending to the SRA as a means of resolving outstanding issues would be put in train and that involving Nina Lather in regulatory work would assist in the restoration of her career.

He felt that it would be possible to provide a much needed service to BME (and white) solicitors who were undergoing regulatory action and needed quality, politically aware, affordable advice and representation. He had never hidden this as it was something he had been openly advocating that the BME representative groups and their members should do rather than sit on the sidelines and complain about things.  He himself had been doing regulatory work for a long time and the knowledge, insights and experiences he had gained in the preceding year led him to want to add solicitors’ regulation to the areas that he covered.

At no point had he suggested or implied that I would be joining him in legal work as I was not a lawyer and had no wish to be involved in regulatory work.

This is only one of many examples of the EIG, comprised of no less than six organisations representing BME lawyers, inventing clay pigeons in order to shoot them down under the guise of critiquing my report, a report which it would appear that none of them has read at all, or read intelligently.

Another example is the last of the EIG’s 12 ‘flaws’, i.e.:

BSN asked repeatedly that Andrew Hopper QC, an experienced regulatory silk be involved in the Review which the SRA refused on several occasions.

The EIG does not say what the Black Solicitors Network meant by ‘be involved in the review’. The BSN (and others) asked the SRA to engage Andrew Hopper QC to conduct the review jointly with me. The SRA declined to do so. As far as I was concerned, however, I did not need the SRA’s permission to involve Mr Hopper in providing evidence to the review. I did so invite him and Mr Hopper was one of a number of regulatory lawyers who provided vital qualitative evidence to the review.

Unreliable Witness

The EIG and the SBL in particular had the SRA in their sights on the issue of race discrimination for some considerable time. Had they done their homework, they would have discovered that I had acted as external evaluator for The Law Society between 2005 and 2009, assessing its performance in promoting Equality & Diversity.  That period spanned the final years of the Law Society’s in house Regulation Directorate, with its Investigation & Enforcement (I&E) arm and the establishment of the SRA following the Legal Services Act 2007.

In my 2005 report to The Law Society, I recommended that I&E should seek to establish:

  • Commonalities in the factors giving rise to I&E interventions involving BME practitioners;
  • The profile and history of the legal practices in which they operate;
  • The number of BME practitioners subject to intervention decisions who are from legal practices that they own and control or that are owned and controlled by other BME practitioners;
  • The number of Registered Foreign Lawyers subject to I&E intervention decisions relative to their overall numbers in legal practice;
  • Whether there are Professional Ethics issues that arise recurrently in cases involving BME practitioners and the context in which they arise;
  • Support and professional guidance mechanisms available to them and the use made of them;
  • The extent to which similar or near identical precipitating factors involving white practitioners would trigger I&E intervention;
  • Comparative assessment of the manner and style of investigation I&E conducts with BME practitioners and with white;
  • The level of cultural competence and E&D awareness of staff within I&E;
  • Whether the level of over-representation and the analysis of factors triggering I&E intervention evidence point to the need for specific guidance for BME practitioners and other groups operating in similar contexts.

In my final report to The Law Society Group (2009) I stated:

In July 2008, Lord Herman Ouseley reported to the SRA on the independent review he led into disproportionate regulatory outcomes for black and minority ethnic solicitors.  The review concluded that, among other things:

(…) the SRA is open to the charge of institutional racism, as its policies, procedures, practices and actions, however unintended, can be seen to have disproportionate detrimental and discriminatory outcomes for BME solicitors. Two other areas of evidence of disproportionality (…) affecting BME solicitors who are more subject to forensic investigations than white solicitors and, as a consequence, are disadvantaged considerably through the non-disclosure of information about allegations made about them.

Conversely, the report found, BME solicitors and staff are further disadvantaged by the SRA’s failure to deal effectively and independently with complaints made by them of alleged discrimination in the way they have ben treated by the SRA. The report notes that ‘the processes applied seemed designed to ensure that the outcomes are virtually always against the complainer’. The report provides a comprehensive audit of the SRA and makes 40 recommendations, ranging from organisational culture and leadership to operational issues.

The SRA acknowledged the findings of the Ouseley report and made a full response, giving details of how it would address the report’s findings and recommendations. While it is to their credit that the SRA accepted the report’s findings without being defensive, they have set themselves an ambitious plan for taking corrective action. It is our view that there are far too many actions contemplated within a timescale that might well prove to be unrealistic. We would advise that the SRA revisits its response and proposed actions, concentrating upon those actions that would help to achieve the following:

a) strengthening management;

b) eliminating the mindset, working practices and operational culture that lead to the adverse impact on black and ethnic minority solicitors in the manner found by Lord Ouseley;

c) scrutinising the competences and practice of their investigating team, ensuring that personnel performing those crucial regulatory roles have the knowledge, understanding, skills, attitudes and behaviours that are conducive to delivering fairness and justice across the solicitors profession;

d) carrying out random inspections of the investigation process and outcomes;

e) ensuring that complaints by black and ethnic minority solicitors  and staff about their treatment by the SRA are investigated in a rigorous and timely fashion;

f) acting in partnership with the respective solicitors’ networks to address whatever patterns are seen to emerge in the interventions SRA makes in black led firms;

g) enabling the solicitors’ networks to work strategically in partnership with SRA to address the issues raised by Ouseley and help improve performance;

h) applying an equality competency framework to all managers and staff, especially enforcement officers and assessing them on the basis of their performance;

i) ensuring compliance with the Solicitors Anti-Discrimination Rules, including competency on equality and diversity at both pre-qualification and post-qualification stages;

j) implementing a schedule of rigorous impact assessment and reporting on its results;

k) appointing an internal scrutiny group to perform functions within SRA and between it and the rest of TLS Group, similar to the work of the Corporate Equalities Group.

My comparative case review report to the SRA (2014), under the title ‘Implementing Ouseley’ examines how the SRA has been acting upon Lord Ouseley’s recommendations (Ouseley 2008) and makes its own recommendations for more timely and appropriate actions.

However fractious the EIG’s dealings with the SRA may have been, the SBL has shown itself to be capable of acting in a manner which is highly questionable as far as professional standards and at least a commitment to natural justice is concerned.

THE SBL and ‘Race for Sport’

In 2013, I was approached by the Chair of the Society of Black Lawyers (CSBL), Peter Herbert O.B.E, who shared his vision of a campaign that would bring to the organisation and practice of football as a global sport the values, principles and responses that accrue from years of struggle in the UK, the USA and elsewhere for human rights, equity and racial and social justice.

While the immediate background to this was his personal involvement and that of members of the Society of Black Lawyers (SBL) in representing victims of racism in football, or commenting on the way football authorities across Europe were dealing with racism in football, he and SBL had a concern that football as a sport should not be allowed to become ‘the last frontier’ in which racism in all its manifestations as seen in the conduct of players, fans, coaches, commentators or football authorities went unchallenged.

I agreed to join this SBL initiative and in due course, at my own cost, accompanied CSBL and a couple of professional footballers to the USA for discussions with the National Football League and the National Bar Association. Not long afterwards, conflict arose within Race for Sport (RfS) which involved CSBL and Race for Sport’s director of communications. The former called upon me as general secretary of RfS to suspend the latter, something which I considered to be both unwarranted and unjustifiable. CSBL’s handling of the matter led to the resignation of some members of the council of RfS who also refused to suspend the director of communications.

As the situation deteriorated, I also resigned. My resignation was  on account of what I saw as SBL’s blatant denial of natural justice to the director of communications and an insistence that CSBL could not be voted out of the Chair because RfS was SBL’s brainchild. As I observed at the time:

‘If RfS is a democratic organisation, then surely its members have the right both to hold any officer or postholder to account for their conduct, including Peter Herbert, in exactly the way he insisted on holding the director of communications to account, and to re-elect or remove them if that is the will of the majority. What on earth gives SBL as an organization that was instrumental in starting Race for Football/Race for Sport the exclusive right to be Chair of the organisation? For how long? Is this a Robert Mugabe model of leadership and governance? Peter’s stance rather suggests that RfS is a satellite or offshoot of the Society of Black Lawyers and that therefore SBL has the exclusive and everlasting right and the authority to determine who the Chair of RfS should be’.

I sent the governing council and members of RfS soon afterwards my letter of resignation.  I had agreed previously to speak at an international conference RfS was to host in London in September 2013. Having received my resignation, CSBL sent me an email on 25 September in which he stated that the conference would take place the following day as planned, but that they now had a full complement of speakers and panellists. In the light of the views I expressed when I resigned as General Secretary of RfS, ‘the consensus is that it would be incompatible’ for me to participate as a panellist or speaker at the conference. I was nevertheless welcome to attend if I chose to do so.

I replied as follows (25 September 2013):

Thank you for doing me the courtesy of informing me, although I had already prepared to present on the topic I was given.

I am intrigued by the statement that ‘in the light of that fact and the views you expressed on your resignation as General Secretary of RFS the consensus is that it would be incompatible for you to participate as a panellist or speaker at the conference’.  I was not aware that those views were in any way antithetical to the principles, values or ‘raison d’etre’ of Race for Sport ‘per se’, which I continue to believe in. Be that as it may, the decision of ‘the consensus’ suits me fine.

With kindest regards!

I then received a message from a SBL member who was on the Executive of RfS and was the main convenor of the Conference, stating that they had just seen the email from CSBL and was unhappy with it as the matter of my presentation to the conference had not been discussed at the last planning meeting and they had not met since. It was therefore not clear who CSBL was referring to as having provided the ‘consensus’ that it would be incompatible for me to participate.

The conference did take place on 26 September. I did not attend.

Since then, as I understand it, no opportunity was created to discuss my resignation or that of those footballers and council members who resigned before I did.  The conflict between CSBL and the former RfS director of communications and SBL’s way of dealing with it has never been discussed.

Then came Exaro News, SBL’s letter of 1 March 2014 and the EIG press release, manufactured ‘conflict of interest’ flaw and all, with SBL as the lead signatory.

Combating Racism with Integrity

Placing oneself in the vanguard of the struggle against racism does not displace the need to uphold standards of fairness and justice and to act with integrity. Gone are the days when Black self-styled anti-racists would induce White people to flagellate themselves with guilt in ‘racism awareness training’ encounters.

If SBL or any other organisation claims the moral high ground, the institutions they seek to hold to account, no less than those Black practitioners whose interests they seek to defend, have a right to expect them to act with integrity and with a concern for justice. There are anti-racist combatants who are locked in a victim mould and believe that the end justifies whatever means suit their purpose. Then there are protagonists in the struggle against racial oppression and for equity and social justice who believe that their struggles and conduct must project and be governed by the values and principles which are the total antithesis of the oppression they seek to confront and eliminate.

Thankfully, of those two camps, I have always been clear as to the one to which I belong.  

Picture (home): Royal Courts of Justice (“Courts’ Closed”) by Chris Kealy (Flickr – CC BY-NC-SA 2.0)