Choosing the best?

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The raw numbers in today’s Silk cohort are illuminating, finds David Wurtzel, and raise wider questions as to whether a more diverse and representative rank can be achieved through a merit-based system alone

The list of new Queen’s Counsel was published in January. 


The successful applicants were rightly congratulated for what they had achieved. At the same time a note of caution was struck. Why, when women now make up 35% of the profession, are they only 20% of new Silks? What will that do to the judiciary of tomorrow? Do we want it to look like the judiciary of today? In response, the QC Appointments Panel called for more women applicants and pointed out the success figures both for women (higher than for men) and for BAME applicants. This, however, is only part of a very old story.

A question of diversity

The question of diversity hangs over the choice and process of selecting pupils and of awarding Silk. But they are different between themselves. No one is obliged to apply for Silk. It is a random, individual decision taken by barristers at an unpredictable moment in their career, generally after 15 years’ Call. The numbers are spread very unevenly amongst the Bar and across the country. I counted the number of Silks in six leading sets in London: 15% of all QCs can be found in what is less than 1% of all chambers. Apart from personal factors, the decision by the individual barrister is based on the state of their practice, on balancing the benefits of higher fees and better work against the risk that that work may not come. The pool of applicants comes from those who are generally aged between 35 and 55, have highly successful practices, and are in a relatively small number of chambers. They are not by definition representative and using the ‘Bar at large’ as a base of comparison is not useful. And the numbers are tiny: 237 people applied for 2015-16. Indeed, the total number of QCs is steadily falling, from 1,827 in 2010 to 1,625 in 2014 according to the Bar Council.

Neither are their areas of practice representative of the Bar. They are skewed towards specialisms where Silk work is growing. That does not seem to be in the publicly funded Bar, something which is entirely out of the control of the QC Appointments Panel. The criminal Bar with 5,000 practitioners makes up one-third of the Bar at large. There were only 26 new criminal QCs (26% of the total) in 2013-14; 20 (21.5%) in 2014-15 and only 17 (16%) in 2015-16. Family follows suit: five family Silks in 2013-14, 11 in 2014-15 and six in 2015-16. Although women make up two-thirds of family practitioners (and 75% of those doing children work), five out of the new six are men and five out of six practise in London.

The importance of Oxbridge

Compare and contrast the above with the civil Bar. In 2013-14, 62 out of 100 of the new Silks were in purely civil work, in 2014-15 it was 58 out of 93 (again 62%). This year, 78 out of 107 were purely civil practitioners. Looking through the chambers’ profiles, one sees that the bulk did commercial work (including Chancery, property, planning, professional negligence and intellectual property) plus a strong element in the burgeoning field of public law. Three chambers produced three new Silks each. The commercial and Chancery Bars, according to Barristers’ Working Lives, are 75% male and 56% Oxbridge.

The gender and education background of the new cohort is therefore not surprising. Although only 31% of the Bar over three years’ Call went to Oxford or Cambridge, this year Oxbridge makes up at least half of the 107 new Silks. This is based on what is set out on chambers’ websites (not everyone declares their education) plus the announcement by the Cambridge Law Faculty that 31 of their alumni were successful. Does the increasing predominance of Oxbridge at the Bar (45% of those under three years’ Call) and amongst new Silks have an impact on the question of diversity? So far this has not been debated. At the moment, the trend is moving in one direction.

From old to new

Anxious to encourage more women to apply for Silk, the QC Appointments Panel cites the success figures for female applicants, which are higher (51%) than those for men. This goes hand in hand with the hopes of those who designed the modern system of appointment. By making the process more open, welcoming and transparent, they could alter the make-up of QCs overall. Before 2004, one must recall, it was the Lord Chancellor who did the selection, having consulted judges and senior members of the Bar who in turn were ‘encouraged to take discrete soundings from other leading Silks in the field’ as Lord Mackay described it. Some feared that this perpetuated an elite of white men from leading London sets. In 1993, the AGM of the Bar passed a resolution (82-32) noting: ‘The Bar views with grave concern the present system of appointing Silks.’ A report by the late Michael Kalisher QC largely endorsed the status quo. In 2001 the Office of Fair Trading stated that the system distorted competition between junior and senior barristers and lacked the features of a genuine accreditation system, eg there was no further appraisal to ensure that the ‘quality mark’ was still justified. A subsequent consultation ensued.

The QC status was retained but the process was radically altered. An independent, self-financing panel was established. It charges a fee (now £1,800 plus VAT). In the old days, the British taxpayer indirectly footed the bill through paying for the Lord Chancellor’s department, but now it is thought that those who derive the financial benefit should pay. The form is far longer and more complex but diversity is an equal competence with advocacy. Ideally it should have drawn a larger number of applicants who now realised that they would be considered because of what they had achieved, rather than who they were or who they knew.

Only 45 women

The result has been counter-intuitive. Here, one relies on the spreadsheet on the Ministry of Justice website. The number of appointments has risen: an average of 80 per year from 1995-2003 but 106 per year from 2006. At the same time, number of applications has dropped dramatically. In 2015-16, fewer than half the number of men applied as in 1995. Throughout this 20-year period women have, in fact, been more likely to get Silk than men: 18.9% success for women versus 15.9% for men on average between 1995-2003; 51% on average versus 41% on average from 2006. The huge rise in success rates is simply because fewer barristers are applying for a larger number of appointments. Curiously, despite all the encouragement, despite the new process, despite the Bar Council’s much-vaunted mentoring scheme, despite many role models including two out of the last four Bar Council Chairmen being distinguished women practitioners, the number of female applicants has gone down in relative and absolute terms, if less dramatically than for men: on average, 45 per year applied in 1995-203, 43.4 per year since 2006. In short, for 20 years now we have not been able to get on average more than 45 women per year to apply for Silk.

The greatest improvement is for BAME barristers. Before 2004, 19 on average applied per year with a success rate of 15.34% (only one per year was appointed in the mid-1990s). Now it is on average 24 per year with a success rate of 35.8%.

The future of the judiciary

As for the future of the judiciary, the pool is not QCs in general but those QCs who actually want to go on the High Court bench. Quite a small number appear to do so. According to Barristers’ Working Lives only 61% of QCs had successfully applied for even part-time appointments. Subtract further those who prefer the Circuit bench. Again, raw numbers are more illuminating. According to the Judicial Appointments Commission (JAC) figures, in the last round of 10 High Court vacancies, 70 people applied: 50 men or 3.5% of male Silks and 20 women or 9% of female Silks. The JAC does not say if anyone was a repeat applicant (see JAC Official Statistics June 2015). The appointments reflected this: seven men and three women. There were two successful BAME candidates out of four applicants.

Are the best chosen?

Last year, Michael Blackwell, an assistant professor at the LSE, published in The Modern Law Review a study, ‘Taking Silk: An Empirical Study of the Award of Queen’s Counsel Status 1981-2015’. His starting point was that there is a clear public interest in who does become a QC, both because of the higher fees they are paid and because a number form the judiciary.

In his research, Professor Blackwell looked at barristers in 138 chambers between 1981 and 2011. Chambers were chosen because at least one of their members was appointed to the High Court or at least four members took Silk. One hundred of the chambers fell into both categories. In total, the dataset contained 11,452 barristers and 93% of those appointed QCs since 1980. Gender, university attended and Call date were identified. He found that both before and after 2004 there was a correlation between gender, Oxbridge and chambers in getting Silk. He opined that some advocates were therefore disadvantaged in their applications and that therefore the best advocates were not being appointed. He also stated that it worked against the consumer because it distorted the level of barristers’ fees and that it privileged some advocates in a court setting.

His arguments may find little favour with the Bar. They may be more relevant when we next debate whether there should be QCs at all. However, one of his points is unlikely to be easily dismissed, namely, that it is not a genuine kite-mark of quality because of the absence of reappraisals. The process assumes that the judgment on a barrister aged 45 or even 35 would necessarily hold good for the next 20 or 30 years. There is a near-forgotten provision in the rules which allows for the removal of the status of QC for cause, but it has never happened and it is clearly only there in case of a fundamental professional breach.

Reappraisals

What the Bar might think of reappraisals can be gleaned from the response to the Quality Assurance Scheme for Advocates (QASA) saga. QASA did not purport to be as rigorous as a reappraisal. The Bar Standards Board looked at the Code of Conduct. That requires barristers to provide a ‘competent and professional service’. No one had disagreed with that. So the word ‘competent’ was to be used as the pass/fail criteria, but in context. The context was that an advocate had to be competent according to nine standards and over 100 criteria. For a QC to be ‘competent’ he or she had to demonstrate a ‘superior grasp of law and practice’ , ‘delivered superior structured and highly focused submissions’, ‘immediately sees implications of witness’s answer and responds appropriately’, etc.

The criminal QCs stated that they could not agree to a scheme which included them in it. The argument was not merely that it was unnecessary to quality assure QCs; it was positively harmful. They said that for QCs to be part of such a scheme was against the public interest. At least in the Bar Council, no one expressed disagreement.

Is merit enough?

At the moment we have a system of selecting QCs which purports to be transparent, egalitarian and based on merit. The QC Appointments Panel had no control over which 237 barristers put themselves forward. In a sense the decision more lies with the Bar who chose to whom to give a tenancy and with whoever (if anyone) might be responsible for the relative state of prosperity in various parts of the profession. At the moment we know what the outcome is likely to be in future QC competitions. If we want something more – if we agree with Professor Blackwell that the best advocates are not being chosen, or simply decide that the profile of education, gender and race must change – then we need to be absolutely clear what we want to happen and how we intend to engineer it so that it does. Complaining about percentages is not enough.

Contributor David Wurtzel, Counsel Editorial Board

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David Wurtzel

David practised at the criminal Bar for 27 years and is a door tenant at 18 Red Lion Court. Prior to his retirement, he was a consultant in the CPD department at City Law School and consultant editor of Counsel. David is a member of the Counsel Editorial Board.