The recent judicial review proceedings by the Black Solicitors Network (BSN) and the Society of Asian Lawyers (SAL) is one of four that have been brought against the Carter proposals. Opposition has come from unlikely sources such as the judiciary and City firms. There were also parliamentary concerns shown in the recent report by the Constitutional Affairs Select Committee. For the BSN the proceedings came as a last resort following protracted discussions with the Legal Services Commission and the Department for Constitutional Affairs.
One of the main objectives of the Carter review is to create “a diverse market of lawyers”. This is disingenuous given that the Government has always known that the proposals would wipe out a large proportion of black and minority ethnic (BME) firms.
Price-competitive tendering was first mooted in January 2005 in a consultation paper by the Legal Services Commission. The paper concluded that this would have a disproportionate adverse impact on the ability of BME firms to provide criminal services. Due to pressure from the BSN, an independent report was carried out (known as the MDA report) as part of the race impact assessment of the proposal.
The report concluded that two-thirds of BME firms would be eliminated if price-competitive tendering is introduced in London with a threshold of £50,000. The figure rises to 88.99 per cent if the threshold is increased to £550,000, compared with 54.97 per cent of white firms. The Government’s own draft impact assessment of the police station reforms alone shows an attrition rate of 37.5 per cent of BME firms in London as opposed to 18.99 per cent of white firms.
Despite this prior knowledge, Lord Carter adopted price-competitive tendering as the basis for the procurement of criminal legal aid. Remarkably, no race impact assessment was carried out before the proposals were announced in November 2006, and no mitigating factors were included in the review to take into account the disproportionate effect on BME firms and their communities.
The recommendation of a transitional fund to assist small firms to reorganise in order to compete in the price-competitive tendering era was rejected by the Government.
In a recent meeting with the BSN and SAL, Lord Carter accepted that his proposals would have a disproportionate effect on BME firms, but could offer no explanation as to why the Government had not carried out a full and comprehensive race impact assessment. He suggested that the groups themselves should carry out the assessment. The lack of an assessment is all the more shocking given that the Minister for Legal Aid Vera Baird assured the BSN at its annual lecture in June 2005 that “there will have to be a full race impact assessment of these proposals if they become government proposals”. The Government and the LSC has left the legal community with no doubt that the proposals will be pushed ahead irrespective of the outcome of the regulatory impact assessments, which it will carry out before the individual parts of the review are implemented.
The BSN’s view is that the simultaneous implementation and consultation approach goes against the principles of Section 71 of the Race Relations Amended Act 2000, which imposes a duty on the Government to have due regard to the need to eliminate unlawful racial discrimination; promote equality of opportunity; and promote good relations between people of different groups.
The race impact assessment should be carried out before the policy is formulated and not be treated as a tick-box exercise to be overcome as part of the reform process. It is surely pointless to wait in vain for an impact assessment, which could only lead to one conclusion – that BME firms will be disproportionately affected to an unacceptable degree, leading to a knock-on effect of reduction of access to justice for BME communities.
While this wait continues, the damage is already being done, with a large number of BME firms already going to the wall. Given this critical situation, the BSN and SAL had no option but to issue judicial review proceedings. At the time of going to press, the formal response to the proceedings by the Government and the LSC were still awaited.