Like so many evidence-based applications today, the Silk appointment system – run by Queen’s Counsel Appointments (QCA) – identifies ‘competencies’ which need to be demonstrated. ‘Integrity’ is one of the five.
In the earliest version of the application form, the applicant was required to provide evidence that demonstrated how they met the integrity competency. Applicants found it difficult to provide concrete examples evidencing their excellence at being honest and straightforward. The current position is that there is no longer any need to set out examples; it is now assumed that in the absence of unspent criminal convictions, findings of regulatory breaches, an undischarged bankruptcy order and the like, you meet the standard.
The QCA recently ran a consultation on how matters of character, conduct and integrity should be treated as part of the application process (QC Appointment Scheme – Character, Conduct and Integrity). This followed a previous consultation on similar issues in May 2017, to which the Bar Council’s Ethics Committee responded expressing its disagreement with some key proposals. The consultation rightly observed that acting with honesty and integrity was fundamental for all members of the Bar; it is, after all, one of our core duties. But should Silks really be expected to be more honest and straightforward than juniors? The Ethics Committee argued that they should.
There was also a practical issue. In general, the responses from assessors are rightly regarded as confidential. The one exception is where a serious matter of integrity is raised; fairness and transparency demands that the applicant in such a case is given the right to respond and explain. This has proved difficult to operate in practice. The QCA is not set up to resolve factual disputes, and the QCA reports that when some judges were told that the applicant was to be given the right to respond, they either withdrew the comment or said they would include the same remark under a different competency such as ‘advocacy’, thus avoiding disclosure of the comment to the applicant and denying the applicant an opportunity for response. The consultation considered whether the answer was simply not to ask judicial assessors about integrity at all and ignore any matter which did not attract criminal or regulatory sanction?
Another issue was the extent to which QCA should be concerned with personal matters provided that the applicant conducted him or herself properly in their professional life. Were, for example, financial difficulties really of any significance to the appointment of Silk?
The Ethics Committee recommended that integrity should remain a key competency for any applicant for Silk, and should be demonstrated to the standard of excellence. Because it was not possible to formulate an all-purpose definition, we recommended that all applicants should continue to make full disclosure of significant financial difficulties and that judges should continue to be asked for their assessment of an applicant’s integrity. Surely their view of that competency was just as important and relevant as their view of all the others?
We thought that thereafter matters of relevance and weight were for the selection panel. We were of the view that QCA has specialist knowledge of the profession and of the ethical standards of the profession, and accordingly was well placed to identify and assess matters of integrity. In relation to financial difficulties such and bankruptcy and IVAs, whilst acknowledging that it was highly unlikely that these were of any great relevance to appointment, there may be cases where an applicant’s financial conduct was relevant and so they ought to be disclosed on the form. The weight to be attached to such matters was again for the selection panel.
We were of the view that properly read, the Bar Standards Board Handbook does engage wider issues of character and as such discreditable conduct in one’s personal life could be relevant to any recommendation for appointment.
The QCA’s 2018 consultation, to which the Ethics Committee has also responded, acknowledges the special significance of integrity for QCs because of the special reliance placed on Silks by the court. It now proposes that the definition of ‘working with others’ is widened to cover all behaviours which are expected of QCs in relation to their professional practice, and the definition of ‘integrity’ is narrowed accordingly to matters of (what the QCA calls) ‘true integrity’.
We acknowledge that ‘working with others’ has always been widely interpreted and could happily include, for example, instances of bullying, so there is justification for the new categorisation. Similarly, behaviour which was racist, sexist or homophobic would certainly fall within the diversity competency. The proviso for all this change is that it must not result in a loss of fairness and transparency to the applicant, the removal of conduct which might previously have been regarded as going to character, conduct and integrity must not result in the denial of the applicant’s right to respond.
On the issue of what is meant by ‘true integrity’, the Court of Appeal considered the issue in March 2018 and provided an ideal template for the QCA. In SRA v Wingate Evans and Malins  EWCA Civ 366 the court found that integrity was a broader concept than honesty. It is a useful shorthand to express the higher standards which society expects from professional persons and which the profession expects from its own members.
At the Bar we have a privileged and trusted role in society and we are rightly required to live up to those professional standards. Integrity connotes adherence to the ethical standards of one’s own profession. The duty to act with integrity applies not only to what professional persons say, but also what they do. Interestingly, all the illustrative examples identified by the court were of conduct in a professional rather than personal capacity.
Lastly, the 2018 application form retains the question: ‘Is there anything else in your personal or professional background which could affect your suitability for appointment or bring the legal profession or Queen’s Counsel into disrepute?’ Unsurprisingly, the QCA reports that very few applicants respond positively to that question. Nonetheless, we feel that despite the absence of any guidance as to the sort of matter it was aimed at identifying, and despite its limited utility, there is a case for retaining this rather self-reflective question.
James Hines QC is Vice Chair of the Bar Council Ethics Committee. See the Bar Council’s consultation response here.