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.[265]
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 Britishcontrolled 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".[266]
226. 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.[267]
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."[268]
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."[269]
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,[270]
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."[271]
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.
247 
