Not that long ago the question ‘Who Gets Silk?’ could be taken at face value. One looked down the list, hoping to find the names of friends and colleagues and perhaps feeling surprise at who was or was not there. There are other issues now.
On 12 January, the day the list of 113 was announced, Helen Pitcher OBE, Chairman of the QC Selection Panel (the ‘Panel’) stated: ‘The original purpose [of publishing profiles] was to demonstrate that whatever may have been the position in the past, appointment as QC is no longer effectively confined to white male barristers educated at public school and at Oxbridge.’
Appointment is ‘now equally available to all higher courts’ advocates, regardless of race, gender, educational background or other extraneous personal characteristic’. In terms of ‘extraneous personal characteristics’, the Panel does not in fact know anyone’s educational background, since the application form does not ask for this information. Even if they wanted to know, barely half of the new QCs publish the name of their university on their chambers profile. Only one out of 113 shared with us where he went to school. The form does ask for information about race, disability and sexual orientation, and the Panel publishes these statistics. If one looks at every possible category of applicant, in percentage terms the most successful was gay or bisexual men and women: eight out of nine were appointed.
It is worth recalling that the Panel has no control over who applies to them or indeed who gets into the Bar. The process involves only a tiny number of people. There were 254 applications this year, 7% up on last year, and the highest since 2010, but still half of what it was in the late 1990s when the Bar was smaller. Compare that against the number of junior barristers – 11,000 – plus the number of eligible higher court advocates to whom the honour is ‘equally available’.
In respect of the latter, the realistic pool there is actually minute. The number of solicitor advocate applicants is usually in single figures. This year it was 13, a record. The successful six are commercial litigators from blue-ribbon firms; none from those who appear in publicly funded cases and none from the employed Bar. Finally, QCs come from a relatively small number of chambers. Twenty-six new QCs, or 23% of the total, come from only eight sets of chambers, seven of which are in London. A further 34 QCs come from 17 other chambers who have two each. A substantial number of chambers are just not part of this. Overall, about 10-15% of the total comes from the Bar which practises outside London.
Practice area picture
The list of new QCs cites the various specialisms under three broad categories: civil, crime and family. Some declare that they specialise in two or even three of these, but after examining the chambers profile, they in fact can all be put in one of the three main headings. Within those there is a diverse bunch. Civil is anything that is litigated in the civil courts – Chancery, commercial litigation, employment, human rights, public law, personal injury etc. Family divides between ‘children’ and ‘financial’ with two concentrating on high net worth individuals. Crime takes in everything, even when it touches on civil procedure.
In these terms, the most striking thing about the 2016-17 list is how it differs from 2015-16. One noted then the steady decline in new criminal QCs, from 26 in 2013-14 to 17 in 2015-16. This coincided with (and presumably resulted from) the crisis over fees, legal aid, and getting a certificate for two counsel. The good news is that the death of the criminal Bar has been grossly exaggerated. There is a bumper crop in 2016-17 of no less than 38; 25 men and 13 women. This is 33.6% of the total, double the proportion last year. They also make up the most diverse group. At 34%, the number of women matches the number of women who practise in crime. Amongst the men are the only two new black QCs amongst the nearly record number of 16 black and minority ethnic (BAME) successful applicants.
The success of these women accounts for the overall increased number of women appointments. On average, since 1995, only 45 women per year have even applied. This year it was 56 (up from 48 last year and the highest since the catch-up year of 2006) and 31 were appointed, the second highest number ever. The 55.4% success rate although good was only slightly above the 10-year average of 52%. That women applicants are in percentage terms more successful than men is now a given: that has been the outcome in 19 out of the last 20 years.
The statistics elsewhere paint a different picture. The ever-increasing percentage of civil practitioners has come to at least a temporary halt. They were 62% of the total in 2013-14 and 2014-15 and 73% last year. This year they are 57.5%. Of these, 50 or 77% are male while 15 or 23% are female. This is a higher figure than can be found in even the most male-dominated parts of the civil Bar, such as Chancery. The picture for family remains a puzzle. In terms of practitioners, this is the most gender diverse part of the Bar, with about two-thirds being women according to the Bar Council statistics. But as in 2015-16 these percentages are reversed when it comes to taking Silk. In 2016-17 there are seven men and three women; six specialise in children cases and four in financial matters.
The Oxbridge factor
Then there is the question of educational background. Perhaps the concern about Oxbridge is that good, indeed better barristers, do not apply because they think that the Panel prefers people from a different educational background, even though, again, the Panel does not ask for this information. There is also the false perception that Oxbridge means public school. The Panel has no idea how many applicants or indeed how many QCs went to fee-paying schools. For what it is worth, in 2015, the freshman Oxford law faculty cohort was 70% from state schools. On the other hand, the Panel’s hands are tied: if, as happens, the commercial Bar recruits primarily from Oxford or Cambridge, then those are the people who will be applying for Silk, and some 45% of the Bar went to a fee-paying school.
In order to get the statistics on educational background, one has to plough through individual chambers profiles, some of which do not list university. Research, however, is assisted by Cambridge compiling a list of its alumni who took Silk: 35 of them, or 31% of the total cohort. Combining all this the results are as follows. Of the 65 civil practitioners, we know the universities of 50 of them. Forty or 80% went to Oxford or Cambridge (or both). Five went to one of the London university colleges. Out of the 48 new family and criminal Silks, we know the universities of 22. Ten or 45% went to Oxford or Cambridge, with London or Durham supplying seven of the rest.
What the 113 do have in common is that they were the best.
Contributor David Wurtzel, Counsel Editorial Board
IN SILK WE TRUST: how upward mentoring of women by women is the future
Despite a severe weather warning across London, there was not a spare seat at the Criminal Bar Association (CBA) panel discussion on 12 January in which 11 women QCs from around the country spoke about female progression at the Bar. The best reason as to why everyone was there is because these are women who habitually keep professional promises every day of their working lives – often against all the odds.
Chaired by Angela Rafferty QC, Vice Chair of the CBA, the other panel members were QCs Sallie Bennett-Jenkins; Kate Blackwell; Kate Brunner; Rosina Cottage; Isabella Forshall; Sarah Forshaw; Sally Ann Hales; Kama Melly; Sally O’Neill; and Lisa Roberts. Despite the inclement weather to be braved on the way home, the audience embraced what was a relaxed and unhurried opportunity to chat to the speakers.
Imposter syndrome and the confidence ‘trick’
By coincidence, the results of the 2016-17 Silk round were announced that day. Seventy-three per cent of current Silks are male. Amongst the 113 Silk appointments announced in January, the proportion of female QCs is at its highest yet. Of the 56 female applicants who applied for Silk, 31 took Silk, a modest improvement on the 2016 round.
Speakers tackled questions such as: Is ‘impostor syndrome’ typically an experience specific to women rather than men? Why is self-awareness and confidence for women essential? How is upward mentoring of women by women valuable? A common theme was that managing your practice is as much about confidence as it is about other abilities. ‘Fake it until you make it’ was a rallying cry. Upward mentoring of established and junior criminal barristers – of women by women – is the future for sustaining the lifeblood of a vibrant independent criminal Bar.
Speakers gave personal examples of when they had made a decision to turn down well-paying, reliable, familiar work so as to be available for children. Difficult and unwelcome conversations with clerks had to be had. Speakers tended to agree that a two-year gap to have or look after children equated to a five-year gap in terms of trying to retrieve practices at the point that they were left. There was disagreement as to whether or not a criminal practice can be part-time. Practising part-time at the Bar had suited several panellists, whilst one had never taken a single day off or away from professional commitments to prioritise or be there for children.
How to do well: advice for upward mobility
Regardless of diaries and how to arrange and manage practices, the speakers coalesced on how to do well before judges whilst having an eye to upward mobility. In summary, these were the main points of agreement:
- Advocacy in court: Barristers are barristers, not ‘male barristers’ and ‘female barristers’. No barrister should think that a judge expects or wills that barrister to fail. Judges do not. Cut the length of submissions; drop your voice by an octave; speak as though everyone present is on the edge of their seats waiting to hear and relish what you have to say.
- Advocacy on paper: Applications for CPS and other prosecution lists are now essential – but often poorly written. ‘I did this’ should be what underlies applications. Vagaries and generalities are not winning. Be specific. Record names of opponents, judges, courts, and heads of legal argument. Each part of an application that requires demonstration of a skill must address STAR: Situation; Task; Action; Result. Turn up your records when you write forms. Be clear about how your advice averted a custody time limit disaster or how you helped a judge to cut a Gordian knot.
- Play to strengths; know weaknesses: Are you stronger in court than on paper? If so, that’s fine, but go back to learning about the law. Why are you weaker on paper? What are you going to do about it? Is it time to reorient your practice area or areas so as to harness strengths and minimise weaknesses? Are you efficient when responding to emails? If so, and if your solicitors and other professional clients value that, does it really matter if you are not the sharpest lawyer at the Bar? ‘Am I good enough?’ is a valuable question to ask.
- Families understand: Missed sports days will be forgiven if prep for that witness won’t wait.
- Invert ‘impostor syndrome’: Channel the positive energies of your naturally competitive streak. Why not think ‘Bloody hell! Even she got it, so why shouldn’t I apply?’
- Set goals and meet them: Look at the criteria for applications. How will you meet them? What evidence can you use to demonstrate what you did and why it mattered? Look at the criteria for applications several weeks or even months ahead of applying. Conduct cases with those criteria in mind. Go out of your way to demonstrate a new skill at every hearing. Don’t avoid confrontation with your clerks: challenge your clerks about the sort of work you want to do. Saying ‘no’ can be a vital way to prune and grow your practice.
- Make committees work for you: Bar committees and specialist Bar associations need the knowledge of practitioners at the criminal Bar. Serve on committees. Make the experience work for you: cultivate contacts and propel your own career through your contribution.
This event was a step in the right direction. Do events such as this one augur well for the future? Helen Pitcher OBE, Chairman of the Queen’s Counsel Selection Panel, has said the Panel has commissioned research to see whether there are barriers which may deter well-qualified women from applying for Silk. The CBA may yet have more work to do in connection with supporting this review.
Contributor Abigail Bright, Doughty Street Chambers and executive committee member of the Criminal Bar Association