Post by Patrick Torsney on Apr 30, 2007 12:35:28 GMT
The impact of the reforms on BME firms and clients
211. A major area of concern in our inquiry into the implementation of the Carter review was the impact of the reform proposals on black and minority ethnic (BME) legal aid providers and any implications for the provision of publicly funded legal services of members of BME communities. BME providers
212. It is not in dispute that some of the current procurement reform proposals would affect BME-controlled legal aid providers more significantly than other providers. In particular the introduction of minimum contract thresholds for criminal legal aid contracts (which may at some point be extended to civil contracts under the Unified Contract) would affect BME-controlled providers in London, Birmingham, Leicester and Bradford disproportionately as they are over-represented among small legal aid providers in these cities
213. Research by MDA in Spring 2006, commissioned by the LSC in the context of the London Criminal Competitive Tendering scheme, calculated the potential impact of different minimum contract sizes on criminal legal aid providers in London in general and on BME-controlled providers especially. The study concluded that any proposal to change the way in which the LSC awards contracts for criminal legal aid work in London would not only have a disproportionate impact on BME-owned or controlled firms, but also on the employment prospects of BME solicitors who are far more likely to be practising in BME-owned firms than their white colleagues. The LSC calculated that a £50,000 minimum contract threshold would currently exclude 37.5% of BME-controlled providers, but only 18.9% of providers with white British majority managerial control
214. Even without the setting of minimum contract values for legal aid contracts, the introduction of competitive tendering for contracts in October 2008/April 2009 is expected to have a similar impact on BME suppliers in the major cities as it is expected that larger suppliers would bid successfully for contracts in these areas
215. Lord Carter shared the concern expressed by numerous practitioners about the impact of his criminal legal aid procurement proposals on BME firms:
“This is something which has concerned me very greatly. It is a very difficult issue. About 11 per cent, I believe, of firms are owned by BME groups, so it is an issue there. They do tend to be smaller and therefore any reforms which lead to consolidation may affect them disproportionately, I suppose, to the whole. There is a key issue, therefore, as to how BME groups get representation in a sense of the type that they wish. We took advice. We could find no affirmative steps to recommend in this because we had to come up with something which was across the whole system.”
216. It is generally accepted that BME clients seek legal help or representation predominantly from BME solicitors. The DCA/LSC noted that:
“...there appears to be a strong relationship between ethnicity of managerial control and client ethnicity: 30.1% of civil BME clients were assisted by BME majority managed providers. 93.3% of civil white British clients were assisted by white British managed providers.”
The link between client ethnicity and that of minority ethnic majority managerial control of legal aid suppliers still appears to be largely unexplored; the LECG study of the Carter proposals noted that
“it has not been tested whether BME clients seek out BME solicitors as such or whether access is likely to be determined by other variables such as the service conditions in the area”.
217. Irrespective of the explanation of the link between client and provider ethnicity, our witnesses emphasised the benefits inherent in the provision of publicly funded legal advice to BME clients by providers of the same ethnic background. The Family Justice Council explained these benefits in its response to the initial DCA/LSC consultation on the civil legal aid proposals in July 2006 and warned of the consequences of a loss of BME suppliers:
“The consequences of the anticipated mass exodus of BME practitioners from this field are important - and not just simply as to the issue of right to choice of representation. There may well be an increase in costs because the advantages of BME practitioners representing BME clients are often “hidden” and not empirically quantified. […] Close cultural affinity with the lay client means confidence is established very early on. This often means advice is more readily accepted and at an earlier stage. This then avoids the need for (often lengthy) contested hearings. BME solicitors regularly conduct appointments with clients, whether in person or on the telephone, without recourse to an interpreter. This is more efficient and represents a significant saving in terms of costs.”
The importance of a shared language and the effect on the acceptance of legal advice was confirmed by other witnesses we heard and in the MDA study of April 2006
218. Marcia Williams of the Carter Diversity Group echoed this when she told us that “the presence of those kinds of firms in the legal marketplace adds a particular value in terms of community cohesion as well”. Sailesh Mehta, a barrister, summed up the concerns of many legal aid practitioners:
“One of the difficulties that we have with Lord Carter’s proposals is that the starting point is that these small firms are uneconomic and therefore bad for business. We do not accept that, we say that these firms are, in fact, very good value for money and add a level of assistance to the community which cannot be put into monetary terms.”
219. With regard to BME practitioners joining non BME-controlled providers, the Carter Diversity Group cautioned in its written submission:
“[…] BME clients are identifying with the BME firm as represented by its cultural makeup and identity and it is a choice that cannot necessarily offered by an individual BME solicitor practising in a non-BME firm. This link of cultural affinity underpins confidence in the criminal justice system for many from the BME communities.”
Similarly, the MDA study warned that “without further data it is not clear whether the possibility of BME solicitors relocating to larger diversified firms might provide BME clients with an equivalent choice to that which they currently have with small specialised firms. Flexibility may be needed to review how BME and other clients and areas with specific demands have effective choice of representation, either prior to the introduction of the new system in specific areas or as experience is gained with the system”.
A comprehensive race impact assessment
220. Several witnesses voiced their concern over the lack of a comprehensive race impact assessment of the Carter reforms “as a package” rather than for each individual reform component (such as the police station or Very High Cost Cases reforms). Only research into the effect of the reforms taken together would allow the LSC/DCA to assess the full impact of the intertwined reforms in BME clients and suppliers:
“It is crucial to have a race equality impact assessment and, having been promised one, I do not see the point of undertaking it piecemeal because we are told that these are all connected reforms. So if you put into place one reform you have already altered the landscape.”
221. The potential impact of the current reform proposals, especially in the area of criminal legal aid, are difficult to assess because of the lack of reliable data on the ethnic background of legal aid clients. The LSC acknowledged that there had been a shortfall in data on BME criminal clients and that it was requiring providers to submit client ethnicity data from December 2006. They assured us that “we will use that data to improve our understanding of BME issues” and that “we are confident of being able to conduct adequate race impact assessments and complying with our statutory obligations in this respect”.
222. BME suppliers provide an essential link between BME communities and the legal world. They can contribute significantly to community cohesion and access to justice for BME clients. The current reforms proposals may have a disproportionate impact on BME clients who form the client base of most BME-controlled legal aid providers. This may limit access to justice for members of ethnic minorities
223. It is imperative that reforms potentially affecting BME clients disproportionately should be robustly assessed on the basis of comprehensive and reliable statistical information. The LSC’s data sets, especially for criminal legal aid, have been acknowledged to be incomplete, so a full impact assessment of the criminal legal aid reforms on BME clients cannot yet be undertaken. We appreciate the LSC’s efforts in collecting the relevant client data and hope that they will contribute to a comprehensive and robust impact assessment of the criminal legal aid proposals.
A breach of the Race Relations Act?
224. We were warned that Lord Carter’s initial reform proposals and the current, modified proposals, might be breaching race equality legislation, notably the Race Relations Act 1976. Sections 19B and 71 of the 1976 Act, as amended by subsequent equality legislation, not only prohibit direct and indirect discrimination on grounds of ethnic background, but also place a legal duty on public authorities to promote race equality, which includes the promotion of equal opportunities.
225. The planned minimum contract sizes for criminal legal aid work were particularly considered to amount to unlawful indirect discrimination of BME-controlled legal aid suppliers on account of their disproportionate impact on them compared to white British-controlled providers. Lord Carter, however, in his report and when he gave oral evidence to us, was convinced that his recommendations “are justified by the need to control legal aid spending and to promote efficiency of service in the public interest. It is considered that the recommendations constitute a proportionate means of securing a legitimate aim”. This view of a proportionate justification of the uneven impact of the proposals on BME-controlled and providers under white British majority managerial control was not shared by the Bar Council, which, in its written submission to us, argued that neither the need to control legal aid spending nor the promotion of efficiency of legal aid services met the test for justification in specific areas where minority firms may be particularly affected. The LSC disagreed with this judgement when it informed us of the approach it would be taking when considering the introduction of minimum contract sizes for criminal legal aid:
“Whether a particular policy is justified depends on the aim of the policy being legitimate and on whether the means used to achieve it are proportionate. Lord Carter’s terms of reference clearly set out a legitimate aim. Relevant factors in considering proportionality are the size of the impact and the strength of the public policy gains. Following our consultation on this issue we will take a view on whether such a threshold is justifiable against these criteria.”
227. We found the conclusions MDA reached in its study on ethnic diversity of the legal aid supplier base in the context of the (now abandoned) proposals for a London Criminal Competitive Tendering scheme of great relevance and would urge the Government to take them into account:
“There is a need to calculate more carefully and explicitly the predicted cost savings of the proposals, with more detail provided about how they may improve value for money. […] Reconsider the rationale for introducing a minimum value threshold, and be more transparent about the reasons for doing so. Ensure that there is evidence to support the proposition that the minimum value bar will improve value for money.”
228. The introduction into the standard terms of the new Unified Contract for legal aid providers of a duty to have a written Equality and Diversity Policy on 1 April 2007, as recommended by Lord Carter, may contribute to combating race discrimination in firms undertaking legal aid work. However, as Marcia Williams informed us in her oral evidence, this was already a requirement under professional conduct rules. She concluded that:
“[…] those recommendations are fairly safe, they are not particularly ambitious, and that actually what we need is a commitment to these kinds of firms being present in the market place. Maybe some more radical suggestions might be considering the scope for either not insisting on a minimum threshold of contracts in particular areas, or for particular types of firms, or, as I say, looking at the criteria for best value, what that might mean and what that might represent in practice, to enable these firms to survive.”
229. We are concerned that some of the reform proposals may contravene the prohibition of indirect racial discrimination under the Race Relations Act 1976 as subsequently amended. Some of the reform proposals, notably the introduction of minimum contract sizes, leave us in doubt as to whether they are a necessary and proportionate means to achieve the intended objective, which is the legal test