Champagne corks will pop on Monday as the 101 recently appointed Queen’s Counsel celebrate at a ceremony in Westminster with the lord chancellor, Dominic Raab.
But while individual lawyers show off their new silk, critics are increasingly concerned that the selection system is biased and even borders on the corrupt.
Dating back to the reign of Elizabeth I, the coveted two-letter suffix QC has become a marker of an elite cadre of advocates in England and Wales. It’s held by about 10 per cent of barristers, and its bearers can charge higher fees, wear a silk jacket and sit in the front row in court. Since 1995 solicitor-advocates have also been able to apply, but have done so in limited numbers. From some 180 applicants, 63 have been appointed.
Until about 20 years ago the award was bestowed by the lord chancellor, after a much-criticised process of “secret soundings”, which allegedly favoured privately educated white men in fashionable London chambers, and discriminated against women, those from ethnic minorities and solicitors.
But in 2003 the quality mark was almost ditched after a report from the Office of Fair Trading branded it anti-competitive and questioned its benefit to consumers. The watchdog also criticised the government’s role in appointments.
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Lord Irvine of Lairg, the Labour lord chancellor at the time, suspended the competition pending a consultation on its future. With gentle persuasion from the then prime minister’s brother, Sir William Blair, who went into bat on behalf of the Bar, Lord Irvine’s successor, Lord Falconer of Thoroton, saved the kitemark from extinction.
The independent QC Appointments body (QCA), founded by the Bar Council and the Law Society, replaced the system of patronage done on a nod and wink over a port at the Garrick club, and the silk route reopened, with the first awards made in 2006.
Candidates now complete a 65-page application form and are interviewed by two members of the selection panel that includes lawyers and lay people.
Even successful candidates describe the process as “soul destroying” or “absolutely hideous” — and it has spawned a lucrative consultancy industry, charging about £250 an hour for coaching in how to succeed in the competency assessment.
Appointments of women and those from ethnic minority backgrounds are increasing, but a Bar Council report in December showed progress is slow. It revealed that there were just five black female and 17 black male QCs, and no ethnic minority QCs in some of the six main practice areas.
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There are concerns about the fairness of the process. Several barristers, who did not want to be named, alleged that the system, which relies on subjective assessments with no proper grading, remains “corrupt” and open to abuse by candidates who try to cheat by submitting examples of work done by others.
After a complaint by the barrister Marc Beaumont, The Times last year reported an investigation that found that the QCA had shown apparent bias. It said Beaumont had been unfairly denied silk after two senior judges resisted his application, raising concerns that the practice of “blackballing” continued.
It also found that the QCA chief executive, Russell Wallman, removed a referee’s assessment of Beaumont before the selection panel saw it.
Wallman adamantly dismisses any suggestion of wrongdoing or corruption as being “wholly unfounded”. And the QCA rejected the inquiry’s finding saying it was “satisfied that all applicants have been treated fairly”.
Fiona Fitzgerald, the chief executive of Radcliffe Chambers, insists that the two letters are recognised as a quality mark and create “kudos” for international purchasers of legal services.
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While other factors also affect the decision of who to instruct, Sinead O’Callaghan, managing partner at the London law firm Cooke, Young & Keidan, says that for big-ticket cases a QC “is a must”.
David Wolfe QC applied in 2011 because he felt he was missing out on certain cases. In 2003 he had vowed never to apply and signed a letter with ten other barristers at Matrix Chambers supporting the abolition of the rank, which they said could not “be justified as being in the public interest or promoting competition”.
Despite improvements, Wolfe says the appointments systems “remains fatally flawed” as a quality assurance system because it is not linked to an applicant’s area of expertise and there is no process of re-accreditation (once you are a QC you have it for life, even if your skills diminish).
The focus on oral advocacy, he says, means that the award is skewed in favour of criminal advocates and against those lacking a sufficiently court-based practice, such as personal injury and chancery specialists.
If the award is intended to provide quality assurance to the purchasers of legal services, Wolfe questions why it affects what barristers wear in court.
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Others complain that the QC badge is a licence to charge inflated fees and that silks are given greater latitude to break court rules. One barrister says that silk gives an imprimatur of respectability to arguments that judges might reject if made by others.
In contrast to the previous regime, which was free, applying for silk is expensive. Hopefuls stump up £1,900 to apply and £3,200 on appointment, plus VAT on both — raking in more than £800,000 annually for the supposedly not-for-profit company that runs the appointments process.
The latest annual report shows that the QCA has reserves of £953,998, down from £1.35 million two years ago.
Wallman says that over the past few years, the body has run at a deficit to reduce its reserves, which he says were “larger than necessary”. To that end, it has given grants to the Law Society, Bar Council, specialist bar associations, the Barristers Benevolent Association and the Solicitors Benevolent Association.
Wallman earns slightly more than £100,000 a year and the QCA has two full-time and two part-time staff.
