The Queen’s Counsel appointment process has turned its back on the old system of secret soundings. After a great deal of animated discussion between the Bar Council and the Law Society, the Lord Chancellor announced in 2005 that the two professions had agreed that a new, transparent process was in place “to serve the public interest by offering a fair and transparent means in identifying excellence in advocacy in the higher courts”.
There were benefits in the previous system, in which Presiders, circuits and specialist associations volunteered views on candidates and in which ultimately the Lord Chancellor alone made a decision. But that system lost the confidence of the public and never had the confidence of the Law Society and was therefore destined not to survive. The new system is an open one, with two distinguishing features. It is based on evidence and it requires proof of the high standard of “excellence” in advocacy to succeed.
It involves a great deal of thought and preparation on the candidate’s part if full justice is to be done to his or her ability. The panel has been conscious of the amount of time and effort that needs to go into a self-assessment and over the different rounds has tried to simplify that process. But, equally, candidates need to find their own persuasive way of presenting their practices and projecting their abilities. After all, that is what advocacy is about. It must involve more than simply a detailed description of the facts of their cases, a feature found in rather too many instances. It will only succeed if there have been sufficient “substantial” cases over the previous two years and if the candidates are confident that sufficient assessors (as referees are now called) will support them.
Meeting the advocacy competency
For the last round the advocacy competency was divided into written and oral advocacy. This was to mark the fact that one type is as important as the other. It was done to try to ensure that a chancery advocate, to take an example, was not at a disadvantage because he or she happened to do a small amount of court work or because the large cases had settled. Just as much weight attaches to written as to oral advocacy. But it may mean that the advocate is deprived of the advantage of good assessments from judges as a result.
To compensate, the panel will give added weight to practitioner or client assessments once it is satisfied that the nature of the candidate’s practice warrants such an approach. Therefore it is most important to explain the precise nature of one’s practice in the application and to allow the panel to place the resultant assessments in a proper perspective. It might also apply to the advocate who has been led in the big cases, perhaps making it difficult for the judges in those cases to make assessments. Again, in such cases the practitioner and client assessments will be given additional weight.
At the same time, the advocacy, if written, has to be forensic in the sense that it is aimed at the court process. This will exclude, for example, advice pure and simple, which cannot meet the advocacy test set by the two professions. It must be the sort of written advocacy to be found in pleadings or skeleton arguments drafted with court proceedings as the objective.
It is important to note that a wide area of tribunal is included in the fora available for oral advocacy. All international tribunals qualify if they apply English law or even if there is a significant element of English law involved. International courts, arbitrations and all manner of tribunals assembled in different parts of the world rightly apply in these modern times. A very liberal approach is taken to the tribunals which qualify.
Assessments are critical
As the process is evidence based, it is obvious that the assessments, which must come from four judges, three practitioners and two clients, are critical. Although a candidate can nominate one judge and one practitioner, all the judges and all the practitioners in all the substantial cases over two years must be recorded, which allows the secretariat to choose the assessors and avoids a candidate shopping for sympathetic assessors. The cumulative effect of the assessments will decide whether excellence in advocacy has been demonstrated.
It is inevitable that the judicial assessments are likely to be the most persuasive. This is because judges are in the best position to provide a detached view, with the experience that accompanies it. That is not to say that the panel will not be on guard to discount a judge who is obviously out of sync with other judges, perhaps because there has been some particular, unfortunate difference between him or her and the candidate.
Quality of assessments
It is unfortunate that candidates are at the mercy of the quality of the assessments produced in their cases. As the rounds have progressed, assessments have been improving in the main. But there are still too many examples of assessors not taking sufficient trouble to provide examples of excellent advocacy. If an assessor cannot remember the case or the candidate there is no harm in saying so and another assessor can be chosen. But if that is not the case, simply saying “excellent advocate” is of limited value without reasons for saying so, which provides the evidence on which the panel can act.
After three rounds, I would be in favour of providing all assessors with examples of good, past anonymised assessments demonstrating the way it should be done. This might jolt some, even amongst the higher judiciary, into taking more trouble.
Sir Duncan Nichol carried out the Review of the Queen’s Counsel Appointment System, jointly commissioned by the Bar Council and the Law Society in September 2008, and delivered in December 2008. It rightly concludes that the procedure and outcomes of the process appear to enjoy the broad confidence of the interested parties. Two principal concerns are considered in it. The first is that only a very small number of solicitors has been applying so far. In the last round, out of 247 applicants, only four solicitors applied, although 75% were successful. As there are some 4,000 solicitor advocates with higher court rights of audience, this is a surprising figure. But it is inevitable the way practices, especially criminal practices, are going that more and more solicitors will achieve rights of audience and it must be likely that the volume of solicitor applicants will rise in the future. The other concern, arising out of lobbying by some solicitors and a group of general counsel, is whether the current definition of advocacy should be widened to include advocacy outside the confines of disputes brought before the higher courts. This would presumably cover high level contracts and the like conducted by senior partners in law firms. In my view the review was right to withstand such a proposal and right in its reasoning that it would risk damaging the brand given to the award, not least amongst the international community.
For the past three rounds I have been a member of the panel responsible for recommending the appointment of silks each year. The half-lay, half-law panel of nine, with a lay chair, works extremely hard, runs smoothly as a unit and is particularly well served by a dedicated secretariat. I feel that three rounds is enough and have pleasure in passing on my part in what is very rewarding work to another practising member of the Bar. The process is working well, is necessary for the public and the professions and I wish it well for the future.
Roy Amlot QC is a former member of the QC Selection Panel