The government?s approach of carrying out simultaneous assessments and implementation is fundamentally flawed, says Stephen Friday

Section 71 of the Race Relations Amendment Act 2000 imposes a duty on the government to have due regard for the need to eliminate unlawful racial discrimination, and to promote equality of opportunity and good relations between people of different groups. This translates into a duty to carry out a race equality impact assessment before formulating policy.

The manner in which the government has sought to implement the Carter reforms for legal aid creates serious doubts as to whether it will be able to discharge its duty under section 71. Fixed fees are set to start this April, followed by police station reforms in October and best-value tendering in October 2008. Throughout the process, the government intends to conduct a series of consultations and to publish regulatory impact assessments (including on race).

But the simultaneous implementation and consultation approach goes against the principles of section 71, which anticipates that the assessment should inform the policy. The government is treating the race equality impact assessment as simply another hurdle, rather than as a positive tool to influence policy.

Evidence of this approach can be gleaned from the analysis contained in the draft regulatory impact assessment on police station reform published in February. The figures showed an attrition rate of 37.5% of ethnic minority firms in London, compared to 19% of white firms. Despite this damaging conclusion, this figure does not appear in the narrative of the report; instead it is hidden in the annexed tables.

The disproportionate effect was further trivialised by the suggestion that there would still be enough ethnic minority fee-earners within firms. This fails to take into account that, from the public?s point of view, these fee-earners would not be visible, and as such there will be a severe impact on access to justice for those ethnic minority clients who require the services of ethnic minority firms for linguistic and cultural reasons.

Anecdotal evidence suggests that the proposals are already having an adverse effect by reducing the supplier base among ethnic minority firms, which are deciding not to carry on criminal legal aid practice in anticipation of the bidding process. If matters proceed on the government?s published timetable, the damage will have already been done, and a large number of ethnic minority firms will have gone to the wall by the time the race equality impact assessment on price-competitive tendering is completed. The government should put a hold on the implementation until a full assessment of the cumulative effects of the entire proposal is independently conducted.

The key question is: what proportion of ethnic minority firms will be lost if price-competitive tendering is introduced? Historical data suggests that the attrition rate among those firms will be as high as 64%. Can proposals that will potentially wipe out 64% of all ethnic minority firms be justified?l

On 21 March, the Black Solicitors Network (BSN) and the Society of Asian Lawyers are hosting a joint conference at the Law Society in London, at which Lord Carter will speak. For details see Diary.

Stephen Friday is chairman of the BSN and a partner at London-based law firm Percy Short & Cuthbert