Applicants face tough task to satisfy silk selection criteria

Architect of new scheme Robin Knowles QC speaks exclusively to The Lawyer

There was almost universal acceptance that if the QC system was to be retained it needed substantial reform.

Is the task simply too big? With a two-year backlog – plus those that failed to make the grade when the floodgates opened in 2002-03 – in excess of 1,000 applicants could be knocking on the door of a selection panel that so far still has only a single member.

Then again, when those applicants take a serious look at exactly what competencies have to be demonstrated to a standard of excellence, they may decide life as a senior junior is not so bad after all.

How many barristers do you know that can demonstrate an understanding of diversity and cultural issues, are aware of their own limitations and – most importantly for the commercial bar – possess sufficient advocacy experience to meet the criteria?

One senior commercial junior on the cusp of silk argues that it is virtually impossible for him and his peers at the commercial bar to gain the requisite advocacy experience, as most have a heavy paper-based practice and in major complex cases will always be led.

Some account will be taken of written advocacy skills, such as the production of skeleton arguments, but these are also signed off by a leader. The only time juniors get on their feet in court will be for interlocutory hearings (for example, on disclosure, injunctions and summary judgment applications), but there is some doubt whether these will be categorised as a matter of substance or complexity for the purposes of assessment.3/4 South Square’s Robin Knowles QC, who with William Blair QC of 3 Verulam Buildings has led the bar’s negotiations on silk reform, is adamant that the new QC status will still mark excellence in advocacy. “This mark is not about expanding the criteria for eligibility of QC,” he tells The Lawyer. “The focus is on quality rather than quantity. An excellent advocate is a candidate for the award whether he or she has a large advocacy practice or is a less frequent advocate.”

However, Knowles does reveal that this is not the end of the line for quality marks, and that others are actively under consideration. “Looking ahead, there’s potential for other marks to be developed that will signify a level of achievement in other areas of legal endeavour,” he says.

Whether or not the system can satisfy all sections of the bar, Knowles is confident that it will be up and running this year. He says it “remains the expectation” that applications will be sought in the spring, paving the way for the first batch of new, improved QCs to be appointed before the year’s end.

Announcements on the professional members of the selection panel, who will join Dame Elizabeth Butler-Sloss, are imminent, says Knowles. He adds that premises have been secured on Gray’s Inn Road, where IT and document management systems are being installed.

An inflated number of applicants in its first year may actually be essential to cover the costs of running the system, which is estimated by some sources to be in excess of £1m. Knowles, though, refuses to be drawn on precise figures.

“Every effort is being made to complete the process this year,” he says. “In the event of a very high volume of applicants, it’s open to the selection panel to take applications in tranches.”

Some barristers are worried about the implication of the panel seeking references from clients. They fear that seeking client references will undermine this independence and affect how a barrister runs a case, if it is driven by a desire to get a good review. Others fear that they will be forced to breach client confidentiality to provide evidence of professional integrity, but Knowles is confident that this will not be the case.

He also points to the motives for reform. “I’m particularly pleased with the recognition that this is all about serving the public interest by offering a fair and transparent means of identifying excellence in advocacy in the higher courts,” he says.

A little independence may be the price of a quality mark that the public believes in.

Despite the fervent attacks against its arbitrary and anachronistic nature, the allure of the most sought-after status symbol at the bar – that of silk – remains as strong as ever.