Who gets Silk 2017?

Fortune favours the brave, women and younger applicants, finds David Wurtzel, who delves into the details of this year’s list to assess how changed is the face of Silk and the influence of where you practise

On 26 February 2018, 119 new Queen’s Counsel will be sworn in by the Lord Chancellor in Westminster Hall.

They are 112 self-employed barristers, five solicitor advocates and two employed barristers. Seventy-two practise in civil law, 41 in crime and six in family law.

The Panel’s goals

The QC Appointments Panel (‘the Panel’) chaired by Sir Alex Allan has published the Report of the Queen’s Counsel Selection Panel to the Lord Chancellor on the Process for the Selection and Appointment of Queen’s Counsel 2017. It sets out in detail how they went about their work, and, significantly, breaks down the success rate amongst various categories.

The Panel aims to dispel what they believe has been the image of QCs. The previous Chair, Helen Pitcher OBE, stated that ‘whatever may have been the position in the past, appointment as a QC is no longer effectively confined to white male barristers educated at public school and at Oxbridge.’ The present chair, Sir Alex, omits public schools but declares that his list was a condition for appointment: ‘whatever may have been the position in the past, it is no longer the case that advocates have to be white, male, Oxbridge-educated barristers in order to be appointed QC.’ The website says that it welcomes applications from all ‘suitably qualified advocates’, but they are ‘particularly welcomed from women, members of ethnic minorities, people with disabilities and other groups that are currently under-represented’. Who else is considered to be under-represented is not set out.

To prove Sir Alex’s point, the website features ‘real-life examples’ of five QCs from the last cohort, who represent a range. We learn about their socio-economic background, schooling, and work-life balance. None of that is taken into consideration when recommending for appointment. It presumably demonstrates, though, that those who succeed are people just like you.

Who is in the pool

Surely any applicant already knows this. They should not be confused with hopeful students who wonder if there is any place for them at the Bar. QC applicants are (as set out below) in their 40s, established for 20 years or so in their profession, and probably earning more than 95% of the British working population. Nearly all successful applicants are in fact following a very well-worn path in their chambers. On average every new civil QC is in a set of chambers in which there are already 20 QCs and every criminal or family QC is in a set of chambers in which there are already 10 or 11 QCs, together with dozens of juniors. Only one out of the 112 will be the only QC in their chambers; another one will be the 45th in their chambers. Mentors, encouragers, role models, people with good advice on how to fill out the form and how to present yourself in interview – they should be right at hand.

Changing face?

The QC Appointments Panel undoubtedly judges on the merits, but they cannot control who chooses to apply. It is a (delayed) function of to whom the Bar chooses to give a tenancy. Since the highest percentage of Oxbridge graduates can be found amongst barristers under the age of 30, one can safely predict the Silks of the next decades. In addition, the area of the Bar which needs the most new QCs is civil and commercial work. This year as usual, they supply at least 60% of the new cohort. They are also the part of the Bar with the largest percentage of white, male Oxbridge graduates.

Who did best

There were 272 applicants in 2017. This is 18 more than last year and 35 more than the year before that. Numbers of those recommended for appointment have been rising since a low of 183 in 2013/14. Numbers of applicants are still half of what they were back in 1999, when there were only 69 awards and the Bar was smaller. For several years now, about 45% of those who apply get it. In 2017, 31% of the applicants were filtered out before interview as ‘having no reasonable prospect of success’. That has been the average initial failure rate for the last three years.

Of the 272, 37% were making at least their second application. Persistence can be rewarded. True, 13 applicants who were interviewed in the past were sifted out immediately. On the other hand, 83% of repeat applicants were interviewed and overall 47% of them were recommended for appointment. In comparison, only 66% of the first-timers were interviewed; 42% of them overall succeeded.

Diversity

The application includes monitoring information and the Panel reports on the diversity statistics in terms of gender, disability and ethnic origin (the ‘under-represented groups’), age and sexual orientation. Declaring one’s sexual orientation attracts the highest number of those who chose not to answer the question (36). The Report says: ‘and 25 preferred not to state their sexuality, and 11 did not answer’. Nine did declare themselves to be gay men or women; four of them were successful. That is 3.3% of applicants and 3.3% of those recommended for appointment, which is also the figure for gay men and women at the Bar in the 2013 Barristers’ Working Lives.

Turning first to the new family Silks. There were six. The average for the last five years is 7.5, which points to an historic decline in overall numbers. Family barristers are nearly two-thirds women, but in the last few years the new family Silk cohort has been predominantly men. This year it is three men and three women. All are white. Five practise from London. Their average date of Call is 1993. Three went to Cambridge and one to London.

As for the rest of the cohort, there were 33 applicants this year who declared an ethnic origin other than white. This has been the average for the last four years and a welcome improvement over the more distant past. They were more successful than whites: 55% (18 in total) were recommended for appointment against only 43% of whites. The 18 are roughly divided between civil and criminal practitioners. Three applicants declared a disability but none was interviewed.

There are seven new Silks who are not self-employed barristers. Two are employed barristers (seven applied) and five are solicitor advocates (10 applied, down from 13 last year). Six out of seven are men; two are amongst the 18 BAME appointees. The Panel expressed itself ‘concerned’ at the low level of applications from the employed Bar and from solicitor advocates. They are speaking to the Solicitors Association of Higher Courts Advocates and the Law Society about it.

Female success rates peak

The question of women applicants is a persistent issue. There were 50 women applicants, or 18% of the total. This is down from the previous year (56) and closer to the historic average of 45 women applicants which has been the case since at least 1995, when there were substantially fewer women senior practitioners. According to the Bar Standards Board (BSB) statistics, there are now over 5,700 women barristers, up 12% from 2010. Numbers began to rise in the 1980s and carried on steadily until now and for several years past, women and men enter pupillage in roughly equal numbers. One would have expected the 1990s cohort to be swelling the application numbers now. Why this is not happening needs to be addressed.

The irony is that for the last 20 years, women are far more successful than men when they do apply. Year after year, the percentages speak for themselves; in seven out of the last 10 years, a majority of the women who applied got it. Men do much less well. This time the figures peaked: 64% of women applicants were recommended for appointment versus 39% of men, the widest gap ever.

As a result, the percentage of new women QCs is lower than the percentage of women practitioners in each of the three specialisms. Seventy five per cent of new civil QCs are men, which is the same figure achieved in the last few application rounds. Only 30% of new criminal Silks are women. This is less than last year, when, as in the profession at large, they made up just over a third of the cohort. However, one should mention that the overall number of criminal Silks recommended for appointment remains buoyant. Last year it went up from 17 to 38. This year it is 40. Clearly all is not gloom in crime.

The Oxbridge factor

Discovering educational background requires looking at all the chambers websites. Several chambers have decided not to provide this information. Civil practitioners are far more likely to state their university than publicly funded barristers; two even named their schools.

The information is therefore partial and should be considered as an ‘at least’ figure. Of the new civil QCs, 49 state their university in their chambers profile. Eighty per cent went to Oxford or Cambridge, which replicates the 2016-17 result. Seven out of the other nine went to another Russell Group university. Eighteen of the 40 self-employed new criminal Silks set out their university. Of these 18, 17 went to a Russell Group university, including seven who went to Oxford or Cambridge. Since 75% of pupillages go to students from Russell Group universities, these figures should remain the same in the future.

Seniority

How long does it take a barrister to build up a practice which makes it appropriate for them to apply for Silk? There are far more older applicants than younger ones: 18 applicants aged 40 and under but 73 applicants aged 51 and older. Fortune, however, favours the young: 83% of the youngest applicants were interviewed and 67% (12 in number) were recommended for appointment versus only 56% of the older ones being interviewed and 29% (21 in number) being recommended. This leaves 86 out of 119 successful applicants as being in their 40s.

People, however, come to the Bar at different ages. Looking at the dates of Call, it seems that specialisms in civil law seem most likely to provide the opportunity for precocity. Twelve of the barristers doing civil law were Called in the 21st century compared to three doing crime. The bulk of those recommended for appointment were Called in the 1990s. In other words it normally takes 20 years or more to build up the kind of practice to become a ‘suitably qualified advocate’.

The importance of where you practise

However, it is not just how long you have practised, but where. The Silk process is and has been relevant to only a small percentage of barristers and to a minority of power house sets of chambers. There are 400 chambers with more than one barrister according to the BSB but only 74 sets which produced QCs this year. Of the 41 sets for the new civil QCs, 38 are in London; 17 out of the 27 sets for new criminal QCs are in London. Seven chambers in London produced 35% of all new civil QCs; five sets produced 40% of all criminal QCs. Two sets alone produced 22% of new criminal QCs.

The Panel chooses on merit, using the criterion of ‘excellence’. If there are certain predictive factors, that should not be surprising. People get into the Bar because they are who chambers wanted, and chambers, after the individual’s own efforts, is the most important factor in a barrister’s career.

Contributor David Wurtzel is a member of the Counsel Editorial Board and a Bencher of Middle Temple

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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.