As the 2016-17 Silk cohort is announced, Counsel probes the appointments system with the Chairman of the Queen’s Counsel Selection Panel, Helen Pitcher OBE

Q The basic principle of Queen’s Counsel Appointments (QCA) has always been that the process should be open, fair and transparent. But over the years, the process itself has been refined. What have been the major changes and how were the lessons learned – that is, how was it determined that something else would work better?

A The prescribed process for QC competitions (‘the Process’) was developed by the Bar Council and the Law Society, and approved by the then Lord Chancellor. Any changes to that Process would be primarily for the professional bodies to put forward. However, there is scope for the QCA Selection Panel (‘the Panel’) to make improvements to the operation of the scheme within the framework provided by the Process.

We have made numerous improvements to the detailed running of the competition, with the aim of making it more accessible, transparent and user-friendly for both applicants and assessors. Progressive changes have been made to internal processes and aspects such as interview schedules which have enabled a significant shortening of the competition cycle in recent years. This has arisen from concerns expressed by applicants that the competition took far too long from submission of application forms to final announcement. We have now shaved several weeks off the competition and hope that in the 2017 competition the Lord Chancellor will be able to announce the outcome before Christmas.

The Panel has also implemented changes to its policies, often with the aim of making the competition’s detailed requirements less prescriptive. These changes have made the competition more accessible for applicants in niche areas, in practices in which there is a call for far greater written than oral advocacy (or vice versa), or perhaps those with non-typical work patterns and those who do not appear so frequently in the higher courts. Specifically, we have reduced the expected number of judicial assessors from 12 to eight, and we have emphasised that applicants will not be disadvantaged by listing fewer than 12 cases and/or eight judicial assessors where there is a good reason for that.

We have improved the feedback provided to unsuccessful applicants (those sifted out pre-interview and those not recommended for QC following interview) to make this more useful for future career planning purposes and for any future Silk application. We have increased the length of interviews in response to feedback from applicants.

Some of these changes have arisen simply from the Panel’s own initiative, but most arise from suggestions and feedback from the professional bodies, the specialist associations and applicants themselves.

Q In recent years the reality on the ground is that there is a decreasing need for leading counsel in publicly funded work: look at the declining number of criminal QCs appointed year by year and the small number of family Silks, which is out of proportion to the actual numbers of practitioners in those fields. Is there a point in encouraging more people to apply in those areas if the need isn’t there?

A It is not for the Panel to encourage or discourage applications from any particular specialist field. Our recommendations are made entirely on merit. Applicants who meet the demanding standard of excellence will be appointed regardless of any other factor. There are no quotas. It is not for the Panel to say ‘there are enough Silks in that area of law’.

Indeed, we do not particularly encourage people to apply at all. The decision whether or not to make an application is a matter entirely for the individual based on factors which will no doubt vary enormously as between applicants based on both their professional and personal circumstances. The Panel’s concerns are simply to ensure that potential applicants from under-represented groups are treated fairly on their merits, and that such potential applicants are not deterred by outdated misconceptions about the process. That is why we have been keen in recent years to prepare and publish profiles of some newly appointed Silks who do not fit the traditional mould.

Q By definition, applicants for Silk are not representative of the Bar as a whole: a tiny number are involved (less than 2% of non-QC practitioners). They are by definition the most successful, there is a clear correlation between certain chambers and taking Silk (some chambers have a dozen or dozens, some have few or none), they are almost all over 12-15 years’ Call and the overwhelming proportion do civil work, which has the smallest number of women and ethnic minorities. Is there a point in contrasting the profile of the new cohort of Silks to the make-up of the Bar at large? And what is the ideal make-up of a new cohort of Silks?

A The Panel does not operate ‘quotas’ or have in mind any ideal make-up for the cohort of new Silks. Our recommendations are made entirely on merit. As I said, all those applicants who meet the demanding standard of excellence are recommended for appointment. Having said that, I am passionate about doing whatever we can so that applicants for Silk are drawn from all kinds of practice areas. We have since the beginning, encouraged and welcomed applications from suitably qualified women, black and minority ethnic (BAME) lawyers, and lawyers with disabilities, or indeed from any other group of advocates currently under-represented in Silk.

We do not think there is any point comparing the profile of Silk appointments with the composition of the profession as a whole. We do, however, think it sensible to look at the composition of appointments compared with all advocates of broadly the same length of experience. The Panel is well aware that the demographic background of current Silks is not fully representative of the cohort of advocates of appropriate seniority, much less of society at large.

The issue is so important for so many reasons. The legal sector continues to face critical challenges in promoting equality and diversity for practising barristers. This has been reflected in annual statistics produced by the Bar Standards Board and the Bar Council (for example the Bar Council’s 2015 report, Momentum measures: creating a diverse profession). Visible diversity in the profession and judiciary supports the public’s trust and confidence and enhances perceptions of fairness in the system. Barristers (and solicitors) occupy critical leadership positions and engage in policymaking impacting on all communities. And in all that, QCs form the pool from which most High Court judges are selected.

There is a particular and long-standing problem with the low number of women who apply for Silk, which I address further below. The picture for those from BAME backgrounds is different. The numbers of applicants from BAME barristers is roughly representative of the proportion of BAME barristers who are in the cohort of those likely to be qualified to apply for QC. Within that overall picture, however, some groups – notably applicants who identify as Afro-Caribbean origin or as other black British – continue to be under-represented both in number of applications for QC and in their success rates.

Q Over 20 years, with considerable variations in different years, the average number of women who apply for Silk is not more than 45. The advent of QCA has not changed this. Women have always done proportionately better in the success stakes; the reason the proportion is as high as it is now is because the number of male applicants has plummeted. So is there something which holds back women from applying, what is it, and what can be done about it?

A I have repeatedly expressed concern that comparatively few women apply for Silk. Although women are generally more successful in the competition than men, that greater success rate is not sufficient to offset the low numbers applying, and so each year the proportion of women amongst those appointed to Silk is lower than women’s representation in the relevant cohort.

We can all speculate about the reasons, drawing on research in other fields. It may be that women are generally more risk averse than men, and/or less willing to risk rejection by making an application. Women may also appear to have less confidence than men about whether they can show excellence in all the competencies to succeed in the competition, and in their ability to succeed as QC. Male applicants (again as a generalisation) appear more likely to take a ‘chance’ with a QC application.

At the practice level, women barristers may be less likely to have gained experience in the sort of cases needed to make a strong application for Silk. The attitudes/behaviours of clerks, and/or clients may mean that some women may find it difficult to get the cases needed to make a strong application (see Women at the Bar, BSB, 2016 and Snapshot: the experience of self-employed women at the Bar, Bar Council, 2015). For many women, their domestic and care responsibilities continue to disadvantage them when compared to male applicants; for example, women might have less free time than men to complete their application form or to stay late in chambers polishing written work with a view to impressing potential assessors. Furthermore, women who have taken a career break may be put off from applying for appointment because they cannot list 12 cases/eight judges over two years (albeit the Panel has repeatedly tried to emphasise that a ‘shortfall’ in cases or assessors will not be held against an applicant in those circumstances).

QCA has recently commissioned research from The Work Foundation to explore why a far lower proportion of eligible women than of eligible men apply for appointment as QC. We will be keen to ensure that we tackle any issues arising from that which lie within QCA’s remit, and I am sure the professional bodies will be equally determined to tackle any issues in the areas for which they hold responsibility.

Q What are your views on re-accreditation? How would it work?

A This issue is more for the QCA directors and professional bodies than the Panel.

Q We already know that the majority of those appointed early in 2016 went to Oxbridge (the Cambridge law faculty announced the names of 31 successful alumni, and a quick look at chambers websites filled in much of the rest of the story). However, that is in line with the Bar’s own choice in recruitment – 45% of those under three years’ Call went to Oxford or Cambridge; 75% went to Oxford, Cambridge or a Russell Group university. So if QCA did begin to ask applicants about educational background,what would be the aim interms of devising the profile of a cohort of new Silks?

A I know that the Bar is determined to become or to remain open to able students whatever their social background, but I think the profession will remain primarily for those who (in addition to their other qualities) are of very high intellectual ability. Unless you believe that the most able students are randomly distributed between all universities, that means that Oxbridge and the Russell Group generally will provide more than their ‘fair share’ of new barristers.

The Panel has to deal with the cohort of advocates as we find it. We neither know nor care what proportion of applicants went to Oxbridge. We see no point in asking about that as part of routine monitoring of applicants, because we have no legitimate use for the information.

Q In a proposed article for Counsel in 2011, your predecessor discouraged applicants from undergoing interview training with consultants on the basis that the Panel did everything it could to make people feel comfortable in interview.What is the current QCA advice to those who want to apply and who want to make the best of themselves in the application process?

A Many applicants will not have experienced an interview since pupillage and will understandably wish to be best prepared for the QC interview. It is up to applicants of course to decide whether or not to seek assistance from training providers. It is clear that some applicants consider that they have benefitted from such training, for example gaining useful experience of competency-based interviewing, which in turn has boosted confidence. Others may wish to get advice from a recently successful applicant for QC, if there is someone suitable known to them.

However, from the Panel’s experience of interviewing it does seem that some applicants may have been coached by training companies to provide what the trainers believe the Panel wish to hear by way of answers, notably (but not exclusively) in relation to the working with others and diversity competencies. This can result in ‘stock answers’ being provided or attempts made by applicants to redirect the interviewers to the ‘prepared answer’. This can detract from getting an authentic sense of the applicant as well as the naturalness and flow of the interview. It is far from impressive.

Q What advice would you give to barristers whose practices are not primarily courtroom-based?

A The Panel takes into account the nature of an applicant’s practice in coming to its decision on whether or not to recommend for QC. We recognise that applicants will not all have the same opportunities to do significant amounts of in-court oral advocacy. However, the Panel does need to see every applicant provide some evidence of excellence in oral advocacy before he or she can be recommended for appointment. Subject to that, there is no specific requirement as to the amount of in-court advocacy, as long as there is enough so that we are able to reach a conclusion. Where a particular specialism does not lead to much court work, the Panel is likely to give written advocacy greater weight than oral in coming to the overall conclusion about the advocacy competency.

My advice to applicants who are not primarily courtroom-based (and indeed to any would-be applicant) would be to consider the quality of the evidence they can provide rather than merely the quantity. If they can provide evidence of excellence in substantial cases, the fact that they are not in court every week need not be a barrier. However, I would also say specifically to those barristers who currently get in court infrequently to make sure they take opportunities to undertake some oral advocacy in the higher courts whenever they arise.

Contributor Helen Pitcher OBE, Chairman of the Queen’s Counsel Appointments Selection Panel

Author details: 
Helen Pitcher OBE

Helen is Chairman of the Queen’s Counsel Appointments Selection Panel. Helen has been a member of the Panel since 2009 and its chair since 2012.