UK Law Articles
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The Times
April 6 1999
David Pannick QC
Silk should not be cut but overseen by the Bar
On Maundy Thursday the Lord Chancellor, Lord Irvine of Lairg, made his annual announcement of which lawyers have been promoted to the rank of Queen's Counsel. There are few more pleasurable moments in a barrister's career than appointment as a QC. And there are few more dismal experiences than opening a letter of rejection from the Lord Chancellor. But whether or not they have been awaiting judgment on their application, lawyers are finding it increasingly difficult to justify a system by which distinction in a profession is determined by a government minister.
Each year about 500 barristers (and a few solicitors who specialise in advocacy) apply to be made a QC (or to "take silk"). About 70 applicants are successful, receiving letters patent confirming that they are "learned in the law" and conferring the right to sit in the front row in court. There may be other incidental benefits: the 1979 Royal Commission on Legal Services suggested that "some support their applications for silk with medical certificates emphasising the need for a reduction in their workload".
Sir William Holdsworth explained in A History of English Law that Elizabeth I appointed the first Queen's Counsel, including Francis Bacon, to assist the attorney-general in giving legal advice to the monarch. During the 18th century, selection as a Queen's (or King's) Counsel became, as Lord Watson suggested in a Privy Council judgment in 1897, "in the nature of an honour or dignity", a recognition of "professional eminence". In 1920 the last remaining historical link with the original purpose of the honour was removed: a KC no longer had to obtain permission before accepting a brief to appear against the Crown. Today the only link with the monarch is that newly appointed silks are invited to a royal garden party at Buckingham Palace.
The system of appointment of silks has been greatly improved in recent years. Decisions are no longer made by reference to irrelevant factors, as at the beginning of the 19th century when Lord Eldon is said to have delayed the appointment of Brougham and Denman because they had acted for Queen Caroline. The procedure has been made more open, with wider consultation, and with published criteria for selection, so removing some of the more objectionable features of a system memorably described in 1992 by the then Chairman of the Bar, Gareth Williams, QC (now Lord Williams of Mostyn, a minister in the Home Office), as based on "the Franz Kafka school of business management".
Mistakes are still made, both in appointing unworthy candidates and in rejecting meritorious applicants. Happily, however, the Lord Chancellor's Department (LCD) has avoided any repetition of the 1993 disaster when two counsel with the same surname applied for silk, one was successful and one unsuccessful, and each was sent the letter intended for the other.
Andrew Dismore, a Labour MP, is leading a campaign to abolish the rank of Queen's Counsel. He contends that it is an "anachronistic distinction" that serves only to "give lawyers more money" at public expense, because it is the State that pays the cost of administering the appointments system. There are no "Queen's Dentists", so why should there be Queen's Counsel?
Lawyers, and the public, should oppose any suggestion of abolishing a mark of expertise that assists solicitors and clients to identify those barristers who are capable of handling the more difficult cases and that helps the LCD when assessing candidates for judicial office. Mr Dismore's complaint that some of those chosen are not up to the job simply recognises the universal truth that any system which depends on human judgment will inevitably involve mistakes - even, on rare occasions, in the selection of MPs. Concern about the higher fees charged by QCs ignores the inevitability in a market economy that the best barristers will be in greater demand and will charge accordingly. As to Mr Dismore's complaint about the expense of administering the system, the Bar Council has agreed in principle to bear that burden.
Though the rank of QC should not be abolished, there is a strong case for
removing the role of a government department in the making of appointments. The
Bar values its independence. It is, then, difficult to justify a system by which
promotion to a senior status is dependent on the advice of civil servants and
the decision of a politician, however wide the consultation. The Bar itself
should decide the relevant policies, criteria and procedures, and should create
an appointments panel consisting of eminent lawyers and distinguished
non-lawyers to determine which applications should be approved. The rank of
Queen's Counsel could and should be replaced by a rank of Senior Counsel.
- The author is a practising barrister and a Fellow of All Souls College, Oxford.
