Rob Marrs, Head of Education at the Society, evaluates the trials and tribulations of policy-making.

Sometimes questions that should be easy to answer are actually the most difficult. For instance: ‘what is a policy?’.

Most of the definitions of ‘policy’ I’ve heard don’t really explain what a policy is. This is a bad thing. Ensuring a policy is a good one is important. Otherwise they are a waste of time and those of us working in policy are just getting in the way. It is important to remember that policy work doesn’t just happen at governmental level, or at professional bodies, but also within companies.

Why does this matter?

Well, wearing my Equality & Diversity (E&D) hat, I increasingly see gaps between what organisations say is covered in their E&D policies and how lawyers working for those organisations perceive how those policies work in practice.

I’ve heard the words ‘yes, that’s how it is supposed to work but…’ many times.

This perception gap was summed up perfectly when I praised an organisation’s work on equality & diversity and one of their employees replied ‘’Oh! You’ve clearly heard the sugar-coated version!’.

The feedback I got about my last blog on why millennial women are leaving the profession certainly chimed with this. One email (from a personal email address, natch) noted ‘’My work has E&D policies coming out of its ears but nothing seems to change!’.

And this brings us back to that question: what is a policy? It is almost easier to begin in the negative.

What isn’t a policy?

Well it isn’t an action. A law firm increasing the E&D budget isn’t a policy. It may be welcome action, but it isn’t a policy.

The collection of data is also not a policy and the plural of anecdote is not data. Evidence-based policy making is to be commended (and much better than policy-based evidence making – which is more prevalent than you’d think!) but policy is not the same as evidence. To use our own research: knowing a gender pay gap exists in the profession doesn’t mean the data we hold is a policy.  People across the profession may look at that evidence and think ‘what should we do to close it?’. They may come to very different views on how to close the gap looking at the same evidence.

Nor is policy a desire. Stating ‘we want everyone in the organisation to consider equality & diversity’ is admirable, but it is no more a policy than ‘I want to lie in bed eating peppermint creams’. Nor is it a belief or a principle. You may agree that equality & diversity is a good thing. You may deeply believe it. But belief doesn’t determine outcomes.  

Obtaining an outcome

I like David Allen Green’s definition: that a policy is about obtaining an outcome which otherwise would not be obtained but for that policy existing. It ought to make a difference. If you introduce a policy and nothing changes then something has gone awfully wrong somewhere.

For a policy to obtain an outcome it needs to be embedded properly.

It is perfectly possible for an organisation to have plenty of policies that promote or ban certain behaviours, or give employees certain benefits, but if these aren’t actually embedded, or aren’t embedded evenly, then the policy isn’t a policy. It is a desire for the organisation and a disappointment for the employees.

There’s no point having a flexible working policy for maternity returners if your managers don’t sign off on such requests. There’s no point have an unconscious bias policy if that doesn’t lead to a more diverse pool of candidates.

I know that HR staff will often look incredulously and say ‘’but we’ve got a policy about that!’. They will be trying to implement their policies but they can’t do it without everyone pulling together. After all just because a policy is written down doesn’t mean it becomes the way things are.

There’s an old gag that ‘statute books aren’t spell books’ and that applies to internal policies at organisations too. Every policy needs processes in place to make sure they happen consistently (and processes in place if they are breached).

Making good policy is hard

Sadly, announcing a policy isn’t the same as waving a wand and making something happen. Policy-making is difficult. Making good policy is harder still. Those who make policy, either at governmental or organisational level, need to know what they want to achieve and understand the tools available to them. The problem is the embedding. Everyone likes launching a policy but when the spotlight fades the hard work begins.

Get it wrong and nothing may change. Don’t think it through and there may be unintended consequences. Announce and move on to the next thing and the policy will flunk.

There seems to be a gap between many lawyers’ expectations and the policies their employers trumpet. There seem to be disparities about how things are embedded and this seems to be a particular issue when embedding policies across partnerships– I’ve lost count of the times I’ve heard them described by disgruntled lawyers as ‘’personal fiefdoms’.

I’m canny enough to realise this may be down to unrealistic expectations or policies being viewed through jaded eyes, but I think this all comes back to many people not knowing what policy is and having unrealistic expectations about what policies can do.

I don’t believe – like some – that having such policies is just window-dressing. I think that most people believe that ensuring that the legal profession is an equal and diverse place is a good thing and they try to put policies in place that will help achieve that. There is a worry though that organisations seem to spend a lot of time, effort and money in setting equality & diversity policies and then see them not work out.

So, if you are a leader it might be worth investigating how are the policies you’ve set actually affecting change and, if they aren’t affecting the change you’d like to see, giving serious thought to as to why.