QC appointments: myths & reality

The last appointments under the old QC system were made in 2003. The old system was based on automatic consultations, primarily with members of the senior judiciary (the so-called “secret soundings”). That system lost the confidence of a number of stakeholders.

The Bar Council and the Law Society jointly developed a new system, based on best practice in selection schemes, to replace it. The first appointments under the new scheme were made in 2006. Almost 1000 advocates have now been appointed QCs under the new system. The new system has abolished secret soundings altogether. There are no longer any automatic consultations. Assessments of applicants are sought only from amongst the judges, fellow practitioners and clients listed by the applicant on their application form. Nevertheless, although the new QC appointment process does not attract as much critical attention as the old one did, there are still some common misconceptions about the scheme. This note attempts to put the record straight on some of them.

Do my judicial assessors all need to be High Court judges or above?

No – this year, 14 applicants have been appointed without having any judicial assessors who are (or were) at High Court level or above. That is broadly the same number as in previous years. Of course, all things being equal, naming judicial assessors who are senior judges in England and Wales is desirable, because the Selection Panel tends to give more weight to assessors who are familiar with the standards expected of silks in the higher courts of England and Wales. However, a more junior judge who has seen your oral advocacy in a case of real substance may well be more valuable than a High Court judge who has only seen you in cases where you were led.

Do I have a chance when the tribunals I mostly appear before do not have legally qualified judges?

Judicial assessments have always been accepted from planning inspectors, but until this year there were complex rules concerning acceptability of judicial assessments from non-legally qualified tribunal judges. However, the Selection Panel now accepts judicial assessments from anyone exercising a judicial function, so it is not a problem if some of your cases were heard by a non-lawyer tribunal judge.

Most of my cases settle. How can I possibly demonstrate the excellence in advocacy required?

Appointment as QC requires applicants to demonstrate excellence in advocacy, but the Selection Panel is well aware that in some areas of legal work, there is far more written advocacy than oral. Whilst some evidence of excellence in oral advocacy is required, applicants who demonstrate excellence can be (and are) recommended for appointment even where the great preponderance of their advocacy is in written form.

I got on the wrong side of a senior judge. Won’t I be blackballed?

There are no automatic consultations, or secret soundings. The Selection Panel only considers evidence from the applicant’s self-assessment; from some of the judges, practitioner, and clients listed on the application form; and from the interview. Assessments are not sought from anyone not listed on each applicant’s application form. The only exception to this is information related to character or integrity, but matters going to integrity are taken into account only after the applicant has been informed of, and given an opportunity to respond to, the matter in question.

All my clients are PLCs who are represented by white men. How can I satisfy the diversity competency?

The diversity competency is not simply about the way in which applicants handle their cases. It can also be satisfied by work in applicants’ chambers or firms, or in a wider professional context. So an active role in helping to improve chambers’ approach towards pupillage or tenancies, or in making the arrangements for those returning after career breaks more family friendly, could demonstrate the necessary excellence.

I was reprimanded by the BSB a few years ago. Won’t that scupper my chances?

Applicants are asked to declare any regulatory findings against them, and QCA does have arrangements to check disciplinary records with BSB and SRA. A recent finding going to integrity, or a series of findings suggesting an indifference to professional obligations, would indeed be a problem. But the Selection Panel does not regard all findings against an applicant as disqualifying them from appointment, and each year a number of applicants who declare a regulatory finding against them are nevertheless recommended for appointment.

Doesn’t the system still overwhelmingly appoint white men?

It is true that most of those appointed (like most advocates in the higher courts) are white men. But 27% of those appointed this year are women, and 11% are from a BAME background. That compares with 7% of women and 6% BAME amongst those appointed in the last year of the old system.

I am unsure about whether a particular case/assessor is acceptable. How can I find out?

The Head of the QCA Secretariat and his team are always happy to advise potential applicants on such matters. It is important to seek advice if applicants are uncertain, because applications cannot be changed once the closing date has passed. You can contact QCA by email at enquiries@qcapplications.org.uk; or telephone 020-7831-0020 for an informal discussion.

In part 2 of this feature on Silk applications, Counsel hears from some successful candidates on why they applied and their experience of the process.