Evidence submitted by The Carter Diversity
Group (LAR 168)
Please find attached a submission on behalf
of the Carter Diversity Group for consideration by the Constitutional
Affairs Committee Inquiry into the Implementation of the Carter
Review. I believe there has been some correspondence with Janice
Gordon who has been working on behalf of our Group to organise
a public forum on these issues and that you may be expecting a
submission from us.
The Carter Diversity Group is made up of a broad
cross section of black minority ethnic barristers and solicitors,
including representatives from the Black Solicitors Network, the
Society of Asian Lawyers, the Carter Group of BME barristers and
solicitors, the South Eastern Circuit Minorities Committee and
members of the Bar Council's Race and Religion Committee. The
Carter Diversity Group however is not a Bar Council or Law Society
representative Group.
The Group was constituted specifically to address
the equality and diversity issues emerging from Lord Carter's
work on the ground that these vital issues had not been addressed
by his interim report published in February of this year. The
Group produced a formal response to that interim report which
can be downloaded from http://www.barcouncil.org.uk/documents/CDG—CarterResponse—Jul06.pdf.
A meeting to discuss our response to the Carter Report and its
implications was held at the House of Commons on 18 July 2006
and it attracted a significant number of concerned practitioners,
the majority from Black and minority ethnic backgrounds, and members
of the profession's representative groups and specialist associations.
You may be interested to know that we a planning to hold a further
larger, public forum on this issue early next month.
EXECUTIVE SUMMARY
The Carter Diversity Group is concerned that the price to
be paid in implementing Lord Carter's reforms will be:
— A denial of access to justice for BME communities;
— The culling of much-needed small BME firms;
— Damage to the long-term diversity of the legal
professions, and judiciary;
— Serious and significant risks to community cohesion
and good race relations.
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1. The Carter Diversity Group (CDG) is made up of a broad
cross section of black minority ethnic (BME) barristers and solicitors,
including representatives from the Black Solicitors Network ("BSN"),
the Society of Asian Lawyers ("SAL"), the Carter Group
of BME barristers and solicitors, the South Eastern Circuit Minorities
Committee ("SECMC") and members of the Bar Council's
Race and Religion Committee. CDG is not a Bar Council or Law Society
representative Group.
2. The need for reform and the objectives of the Carter
Report are widely acknowledged. It is our view however that whatever
the potential benefits may prove to be, the price of Lord Carter's
reforms will be lack of genuine and inclusive access to justice
for BME communities; the culling of much-needed small BME firms
from the landscape of legal services providers; irreparable damage
to the long-term diversity of both branches of the legal professions
and judiciary; and ultimately, serious and significant risks to
community cohesion and good race relations in the UK.
3. Much of the detail of Lord Carter's proposals, such
as the design of the contract boundary areas and the tendering
process has yet to be developed, and further consultations on
this detail are expected to be issued shortly by the Legal Services
Commission. This submission however deals solely with the access
to justice and diversity issues arising from the Carter Report,
and not, for instance, with types or levels of remuneration.
DENIAL OF
ACCESS TO
JUSTICE FOR
BME COMMUNITIES
4. Chapter 5 of the Carter Report contains the more detailed
information assessing the impacts of his proposals for legal services
providers. In paragraph 90 of that Chapter, Lord Carter discusses
securing a diverse sector. He acknowledges that a diverse supplier
base is essential for clients of diverse backgrounds to have confidence
in their legal services.
5. There is a clear link between client ethnicity and
the ethnicity of their representative of choice. This is acknowledged
by Carter's Report in Chapter 5 at paragraph 78. Available data
shows that clients from BME communities tend to choose BME firms
for reasons of their geographic location, linguistic, cultural
and religious affinities.[110]
6. It is important to note that in making that choice,
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.
7. Lord Carter's analysis leads him to conclude that
his reforms should not have a negative impact on black and minority
ethnic firms and solicitors on a national basis although "there
may be some disparity of impact at a regional level". He
justifies any disparate impact by the need to control legal aid
spending and to promote efficiency of service in the pubic interest.
He considers that his recommendations constitute a proportionate
means of securing a legitimate aim.
8. The Carter Diversity Group believes this analysis
and conclusion is fundamentally flawed and will not ensure confidence
in the criminal justice system amongst members of the BME communities
for the following reasons:
8.1 Confidence in the criminal justice system among BME
communities is already low.[111]
This compounds a widely acknowledged underlying sense of isolation
and lack of social inclusion and economic disadvantage among some
groups within the BME communities.
8.2 About 46% of all criminal legal aid firms are run
by BME lawyers. They tend to be small firms practising in crime,
family and public law and they survive because they support and
are supported by their communities.
8.3 BME firms are essential for communities to have access
to justice and there are compelling social and moral reasons for
their continuing existence.
8.4 Carter takes, in our opinion, an unhealthy view that
there is perhaps an "overrepresentation" of BME lawyers,
when considered in relation to the BME population (see table 5.15
in the Carter Report). Significantly, it is in the very centres
where there are large BME communities, such as Birmingham, Bradford,
and Leicester, that BME firms are overrepresented in the small
firm category. For instance in London, 52% of small firms are
BME owned compared to 33% for their white counterparts
8.5 Culling BME firms will lead to local and regional
differences in supply that may adversely affect access for BME
communities.
8.6 Carter appears to believe that the value and significance
of the presence of BME firms, as such, is the same or equal to
having a number of BME practitioners, dispersed nationally.
8.7 In our view, dispersing BME solicitors to larger "diversified"
firms will not provide BME clients with an equivalent choice to
that which they currently have with small specialised firms.
8.8 There is a considerable difference between requiring
organisation-level, internal, HR-led, equal opportunities policies
and having supplier diversity strategies for the sector. There
is also a considerable difference between the organisational and
cultural capacity of a firm to work effectively with the diversity
of the community it serves and "diversity" in terms
of the composition of a firm's staff. The phrase "state of
diversity within firms" belies Carter's lack of awareness
and sensitivity to these issues.
8.9 Lord Carter seems prepared to sacrifice of BME firms
at the regional level perhaps because, in his view, there is an
"oversupply" of BME lawyers at this level. Those individual
BME individual lawyers that remain in the legal services marketplace
will be following his reforms will, on his analysis remain in
the sector at numbers roughly proportionate to their overall numbers
in the national population. The national analysis approaches the
problem in the wrong way as BME communities are congregated regionally
(particularly in the large metropolitan centres) and are not evenly
dispersed across the country.
8.10 Lord Carter's preference for a "national"
rather than a regional analysis of the impact figures, and for
an "individual solicitor" level analysis, rather than
a firms-level analysis is easy to understand. From the table at
5.17, taking London as an example, whereas 12% of white firms
are at risk 22% of BME firms in London could cease to trade before
the best value price completive tendering stage of Carter's reforms.
In other areas, such as the South West, on Lord Carter's figures,
100% of BME firms are threatened. By contrast, on an "individual
solicitor" analysis, the negative impact on BME solicitors
is less severe (the figure drops to 18% in London for instance—see
table 5.18). Furthermore, we fundamentally disagree with Lord
Carter that this level of attrition of BME firms is merely "some
disparity of impact at regional level" (ie 22% of BME firms
as against 12% of white firms at risk) and we are unconvinced
that this level of impact is justified or proportionate.
8.11 It's fair to say that his predicted level of impact
may represent a cautious, conservative estimate. An independent
economic analysis of the impact of the Carter proposals warns
that more than 800 legal aid firms could be forced out of business
- double the number predicted by Lord Carter.[112]
8.12 There is a direct connection and strong interdependence
between small and BME firms and diversity at the Bar. The steady
progress achieved in the last 10-15 years in increasing the diversity
of the Bar will be threatened. As a result, the growing pool of
talented BME lawyers from which judicial and other appointments
are made, will begin to evaporate. There is no mention of these
consequences in that part of Chapter 5 that assesses the impact
of the proposals on the Bar.
CARTER'S
RECOMMENDATIONS
9. Lord Carter's Final Report recommends that the period
of managed transition in the run up to best value tendering in
2009-10 "should be used to sustain and promote a diverse
and sustainable supplier base. This should enable clients to be
confident in the quality of the service they receive and still
offer a choice of legal representative". He puts forward
only two recommendations for ensuring a diverse supplier base:
— Recommendation 5.4: "The introduction of
the following measures:
— Monitoring of ethnic data throughout all stages
of the transition to the market structure in 2010 and beyond;
— Regular monitoring of quality checks to ensure
that they have no unintended discriminatory effects; and
— A requirement that all suppliers have in place
an equal opportunity policy, including specific measurable characteristics,
which is regularly reviewed and which is followed; the policy
should include the promotion of diversity in the workforce and
the capacity of the firm to work effectively with the diversity
of the community in its area;) and
— Recommendation 5.5" "The Legal Services
Commission together with partners, including DCA, should create
a wider diversity advisory group to report to the Lord Chancellor
and LSC Commissioners on the state of diversity within the suppliers
of legal aid services and make recommendations for improvements
where necessary. The Legal Services Commission, Law Society and
the Commission for Racial Equality should jointly review the number
of black and minority ethnic practitioners within firms providing
legal aid services." (emphasis added)
10. Whilst we agree that a key objective must be to ensure
a diverse supplier base, the Carter Diversity Group believes that
taken together these two recommendations are inadequate and naïve
in terms of preventing the damage to access to justice for BME
communities and the haemorrhaging of BME firms
11. The CDG believes these recommendations are ineffective
for the following reasons:
— The DCA and LSC are already obliged to monitor
the ethnic impact of their activities by virtue of the Race Relations
Act. Further monitoring in of itself, will not secure a diverse
supplier base;
— The existing Solicitors' Anti-Discrimination Rule
and Equality Code for the Bar already require firms and chambers
to have in place formal equal opportunities policies aimed at
improving workforce diversity (which this recommendation focuses
on). It is important to note here that workforce diversity by
itself, is not the same as supplier diversity;
— The Bar Council and Law Society already monitor
(quite extensively in some aspects) the composition of their professions;
it is therefore difficult to understand what the recommendation
for monitoring here is intended to achieve;
— An advisory committee in this context is inappropriate
and inadequate because the imperative is to ensure the continuing
presence of BME firms delivering legal services to those who need
them; it is difficult to see how a forum that is advisory can
practically ensure this.
CONCLUSION
12. There is a strong link between a commitment to diversity,
social inclusion and access to justice. The potential political
and social consequences of exclusion are unacceptably high, especially
at a time when the confidence of BME communities in the criminal
justice system is being stretched to its limits and when diversity
and community cohesion are apparently high on this Government's
agenda
13. We are concerned at the lack of an evidence-base
(and in particular a full and thorough Race Equality Impact Assessment)
for these proposals—especially as Carter's Report makes
clear that none of its recommendations are to be tested through
piloting in advance of their implementation.
14. We are disappointed by the compliance-oriented approach
to diversity adopted by the Carter Report which is dismissive
of the likely impact for BME communities and BME firms and practitioners;
and is dismissive of the public value that BME firms represent.
In our view, this compliance-oriented approach reveals Carter's
failure to appreciate the significance of the purposive strands
of the public sector race equality duty which require all of his
proposals not just to be non-discriminatory, but to positively
promote equal opportunities and good race relations among ethnic
groups. It is our view that Carter's proposals may be unlawful
in the light of the public sector duties contained in the Race
Relations Act, as amended.
Annex A
RECOMMENDATIONS OF CARTER DIVERSITY GROUP
1. That a detailed independent race equality impact assessment
is undertaken before the implementation of any of Lord Carter's
recommendations. The timing of any impact assessment is critical,
as any post-implementation assessment runs the risk of being carried
out after the legal services landscape has been altered dramatically
and irreversibly;
2. That the evidence that it is indeed the firms that
are to be hardest hit are in fact those responsible for the budgetary
overspends in the criminal justice system, as opposed to the LSC
and DCA;
3. That there is an independent audit and verification
of Lord Carter's data;
4. That assurances are given that all alternative methods
to the market-based approach for achieving efficiencies, which
may have a less disproportionate impact on BME practitioners,
have been fully considered and rejected;
5. That specific provision be made for the continued
existence of supplier diversity as represented by BME firms regionally
as opposed to the dispersal of individual BME solicitors nationally;
6. That any future changes ensure a level playing field
that enables BME firms to be in a position to be awarded contracts;
7. That a mechanism is established to ensure access to
the market place for new entrants, including BME entrants;
To ensure that BME practitioners are in a position to be
awarded contracts.
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October 2006
110
Managing Diversity Associates: Researching on Ethnic Diversity
Among Suppliers of Legal Aid Services. (2006), commissioned by
the Legal Services Commission. Back
111
R Hood, S Shute, and S Seemungal: Ethnic Minorities in the Criminal
Courts: Perceptions of Fairness and Equality of Treatment (2003);
Anna Clancy, Mike Hough, Rebecca Aust and Chris Kershaw Crime,
Policing and Justice: the Experience of Ethnic Minorities: Findings
from the 2002 British Crime Survey. HORS 223 Home Office: London. Back
112
P Grindley LECG Report, Commissioned by the Law Society (July
2006) p 9, paragraph 3.4. Back
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