Honour without cause
12 March 2012 | By Ruth Green
25 March 2013
19 February 2014
10 March 2014
14 January 2014
10 May 2013
It’s time to make the honorary QC system more transparent or rethink the whole idea
Even the Ministry of Justice (MoJ) has not quite got the hang of who or what an honorary silk is. When The Lawyer requested a full list of honorary QC appointments made between 2000 and 2011 the MoJ embarrassingly counted Harriet Harman as an honorary QC in 2001, before swiftly revising the information and omitting her name from the list. The fact that the MoJ itself seems to know so little about who and what an honorary silk is, is telling.
Details of its selection panel, its approach and even the nominees themselves are a closely guarded secret. Although the nomination period is published on the MoJ website, little other information is available and a quick straw poll of honorary QCs and QCs found that they are none the wiser for it.
If, in the words of Legal Services Board chairman David Edmunds, transparency really is the cornerstone for further progress, the MoJ could do with taking a leaf out of his book.
The need to reform the silk system was so great that in 2004 and 2005 there was a two-year hiatus while what was then the Department of Constitutional Affairs (now the MoJ) conducted a review of both QC ranks.
It was in 1997 that the legal profession first publicly denounced the QC list for not being representative of the bar. Although it still took nearly a decade for reform to kick in, QC Appointments is now open about how it approaches and conducts the process. By contrast, the MoJ seems to do its utmost to keep the finer details of honorary QC appointments firmly under wraps.
For substantive QCs, the outcry led to QC Appointments publishing an annual report that includes a breakdown of how many candidates are put forward and details of their gender and ethnic background.
What did the MoJ do to the honorary QC system? Zilch.
The MoJ claims that providing more detailed information on the names or even the gender of all nominated candidates between 2000 and 2011and all those that nominated them would incur “disproportionate costs”. Information on ethnicity itself is a no-no from the outset, as the MoJ does not keep a record of nominees’ ethnic backgrounds.
What’s it all about, QC?
In fact, although official selection panels for both QC ranks have been in place since 2006, most lawyers are unaware that an honorary QC panel exists, let alone know who might be on it. By contrast, in an effort to make things more transparent, the QC Appointments website includes detailed information about the panel members and lists their roles and interests, even going as far as to list any familial relationships linking them with particular firms and parts of the profession.
What has the MoJ done to the honorary QC system? Zilch.
Following a Freedom of Information request to the MoJ, The Lawyer can reveal that the honorary silk panel consists of two MoJ officials alongside one representative from the Bar Council, one representative from the Law Society, one from the judiciary and a joint representative from the Institute of Legal Executives, the Chartered Institute of Patent Attorneys, the Council for Licensed Conveyancers, the Institute of Trade Mark Attorneys, the Master of the Faculties and the Association of Law Costs Draftsmen. However, information about who precisely has been on the judging panel each year, how many men, how many women and what their ethnic background might be, remains a closely guarded secret.
It is not surprising then that many practitioners interviewed by The Lawyer describe the honorary QC process as “secretive” and believe the MoJ could do much more to improve awareness, even within the profession, as to how to go about nominating someone.
Indeed, the vast majority of QCs and honorary QCs themselves are unaware that they can nominate people or how the process works.
“I don’t think I’ve ever seen any publicity about the nomination of honorary QCs and I wouldn’t know who to go to or how to go about it,” notes one QC.
“It’s hard to tell why the MoJ has chosen to keep the nomination process so low-key,” he adds. “It could be a remnant of the days when those in the know made the system work, but it’s hard to tell.”
QC or not QC?
Even the award of honorary QC itself is incoherent and results in considerable confusion. One key difference between the two QC ranks is that a QC honoris causa is not a ’working rank’. To be eligible to become an honorary QC, you do not need to have full or indeed any rights of audience in the higher courts in England and Wales, and the award does not give you such rights.
Although those inside the legal profession are quite clear there is a distinct difference between QCs and honorary QCs, for others it may not be so clear.
Dame Janet Gaymer, who was awarded an honorary QC in 2008, says: “You have to make it very clear to uninformed people or people outside the profession that an honorary QC is not the same as a normal QC. I’m not quite sure how clear it used to be that you had to put an ’hon’ in brackets after QC in order that there was no misunderstanding. I think it’s clearer now.”
Mishcon de Reya partner Philip Freedman, who was awarded an honorary QC in 2009, says: “My clients felt it was justified that I was being recognised in this way, but most of them didn’t have the faintest idea what the award actually meant and many asked me if I was going to appear in court, so I had to explain what the honorary QC title entails.”
What the MoJ does make clear is that honorary QCs’ contribution must be “outside practice in the courts” and therefore lawyers cannot be awarded the honorary QC title “as an alternative to the substantive QC rank for people who, for whatever reason, do not fit its eligibility criteria”.
This perhaps explains why the MoJ got so confused about what kind of QC Harriet Harman is when it gave The Lawyer a list of honorary QC appointments since 2000.
Whereas the substantive QC title awards professional accomplishment, the honoris causa version has turned into a consolation prize given to non-barristers with no visible or assessable criteria.
Unlike traditional silks, candidates do not fill in an application form themselves or pay any related fee. Much like the Queen’s Honours, candidates have no idea they have been nominated for the award before a letter from the MoJ drops through their letterbox informing them they have been selected and asking if they are willing for their name to be put forward to accept the award.
Also, as with the Queen’s Honours, the honorary QC rank is an accolade rather than career-changing, but does this mean that the criteria,
the process and indeed the results should not be scrutinised? One honorary QC thinks so.
“The general QC system plainly requires transparency and a level playing field as people’s livelihoods and careers depend on it,” notes Freedman. “But for the honorary QC system there’s no such requirement so I’m less worried about it being a democratic process. If there were more people appointed a change to how the system is run might be justified, but not at the moment. As long as the process stays as low-key as it is, it doesn’t need that sort of attention.”
However, the numbers do not lie. Between 2000 and 2012, 46 people were appointed honorary QCs, but unsurprisingly 39 of these were men, with only seven women making the cut.
All seven women on the list were appointed between 2006 and 2012. However, as the criteria do not seem to have changed, the fact that all seven were appointed following the review and the implementation of the official selection panel brings into question whether they have been brought in merely to give the impression that the honorary QC system has undergone tangible reform.
“I know of few quibbles among practitioners over who has been awarded an honorary QC,” says Murray Rosen QC, head of Herbert Smith’s advocacy unit. “I’m all in favour of diversity, but given the age of most honorary QCs - and we’re talking about a very small number of appointments here - it isn’t surprising that it reflects the balance of achievement 30 years ago.”
The figures tell a different story, however. The fact that women make up only 15 per cent of honorary QC appointments over the 12-year period between 2000 and 2012 shows that the current figure is not representative of the legal profession in recent years. Certainly, it is hard to believe that, of the seven female academics and solicitors who were appointed between 2006 and 2012, none were eminent enough to receive the award in the first six years of the noughties,
Since Lord Mishcon became the first solicitor to be appointed as an honorary QC in 1992, a number of solicitors have been appointed as honorary silks, including Guy Beringer in 2006, Philip Freedman in 2009, Peter Freeman in 2010 and Stuart Popham in 2011.
A number of people on this list are synonymous with highly worthwhile contributions to the legal sector, whether in the field of competition, property law, human rights or elsewhere. However, some appointments bring into question whether the honorary QC title will become merely an expected ’badge of honour’ for those who have been longstanding partners at magic circle firms, as is the case with Beringer, who is a former senior partner at Allen & Overy, and Popham, a former senior partner at Clifford Chance.
The appointment of Michael Payton as honorary QC this year seems quite different, however, since, regardless of what he might unassumingly say, the honour is largely for his personal achievements rather than those of his firm.
Gong, not forgotten
When asked whether legal academics, lawyers in private practice and lawyers in public or governmental bodies should all be considered under the same umbrella, most lawyers believe they should, and that creating separate awards for each category would overcomplicate the process.
“For academic lawyers, you could give them some meaningless gong, but why not equate their achievements to those of members of private practice by granting them the same award at the same time?” asserts Rosen.
As Professor Paul Craig, who was awarded an honorary QC in 2000, notes, the title has real resonance in academia as well as in the wider profession.
“This is a substantive award, not just a gong because you’ve been in a certain place at a certain time,” he says. “Those who hold the honour are a serious group of people and for legal scholars this is a substantive award for distinction in their field as well as distinctive contribution to legal scholarship.”
In other words, honorary QCs count - one reason to reform the untransparent process. Indeed, honorary QCs attend the same annual ceremony as substantive QCs at Westminster Hall at the end of March. The honorary QCs go up first to accept their letters patent of appointment from the Lord Chancellor to be followed by the large number of substantive QCs dressed in full wigs and robes.
For Craig, aside from receiving the honour itself, the day was memorable for a particular reason.
“One of my biggest thrills of the day was having the opportunity to sit two seats away from Nelson Mandela, who had also been awarded an honorary QC that year,” he says.
As for the significance of the honorary QC award, perhaps one of this year’s honorary QCs-in-waiting, Michael Payton, puts it best when he says: “It’s good for the solicitor’s profession that people can achieve this award and it’s hugely important to the profession at large.”
Freedman adds that getting an honorary QC is “more like the icing on the cake for a solicitor”.
For Gaymer, who had been awarded a CBE two years previously, attending the ceremony gave her an insight that, as a solicitor, she would otherwise not have had. “As a solicitor I felt like a privileged bystander,” she enthuses. “It was quite a sight seeing all the barristers wearing their wigs - like a little piece of history.”
However, even some honorary QCs seem unclear as to what the criteria are, what the meaning of the award really is and how it differs from other accolades. For Freedman, who has also been awarded a CBE for his services to property law, there is a strong distinction between the honorary QC and the Queen’s Honours.
“Being awarded an honorary QC is a recognition of technical ability, whereas being awarded a CBE, OBE or MBE is just as much about your contribution to your legal field,” he comments.
For Freeman, a senior consultant at Cleary Gottlieb Steen & Hamilton, the distinction is also clear. “A Queen’s Honour is for public service, whereas an honorary QC is for professional service,” he says.
Freeman was awarded an honorary QC in 2010 when he was chairman of the UK Competition Commission, and was unusually awarded a CBE that same year.
Credit where it’s due
As for the future of the honorary QC system, what will become of it as the line between barrister and solicitor continues to narrow?
In a recent speech at the Said Business School at Oxford University, Law Society president John Wotton said: “I envisage the time coming when the barrister/solicitor distinction will be more a decorative than a functional aspect of our legal constitution.”
As Gaymer points out, one issue could be in the title itself. “The honorary QC title only refers to one part of the legal profession - after all, making someone an honorary solicitor is something quite different,” she says. “In the era of alternative business structures, how are we going to honour truly outstanding individuals in the legal profession?”
An Honorary of Legal Professional Services Award, perhaps? It certainly has less of a ring to it, but perhaps it would be more meaningful - and transparent.
At a glance: honorary QCs
l Prior to 2003, the honorary QC system consisted of the Lord Chancellor recommending lawyers either in public service or in academia to the Queen for consideration. According to the Ministry of Justice (MoJ), “when considering candidates for honorary QC the Lord Chancellor formerly had in mind the legal content of the candidate’s post and their length of service.”
l Both QC appointment systems were suspended in 2004 and 2005 while a fullscale review took place by what was then the Department for Constitutional Affairs (now the MoJ). It conducted a consultation exercise that resulted in the formation of a QC selection panel that awarded its first QC and QC honoris causa titles in 2006.
l To be eligible for an honorary QC, lawyers or legal academics must have made “a major contribution to the Law of England and Wales above and beyond what would be expected of them in their particular roles”, says the MoJ.
l From 2000 to 2012, 46 people have been appointed honorary QCs - 39 are men while only seven are women.
l Lord Mishcon was the first practising solicitor to be appointed an honorary QC in 1992, following a recommendation from the then Lord Chancellor, Lord Mackay.
l The honorary QC title is only awarded to lawyers or legal academics in England and Wales. The title does not exist in Scotland or Northern Ireland and there is no parallel system.
l Lawyers and the public are able to nominate people by filling in a nomination form that is available to download from the MoJ website.
Although the honorary QC selection panel was introduced to make the process transparent, given the opacity of the process
it seems to have been merely a cosmetic measure.
In any case, a panel is no guarantee of objectivity and there are even times when panels can inadvertently promote unconscious bias, says Simon Nash, HR director at Carey Olsen and author of Effective Selection Interviewing for Law Firms.
“Panels can be viewed as an antidote to unconscious bias, but there are occasional problems with deference and the concern is that most people on the panel will submit to whoever has the strongest voice or whoever is top dog,” he says.
Nash adds that a selection panel should be moderated by a closed-box vote that would help prevent panel members being overly influenced by other panellists if selection is confined to an open discussion.
A diversity manager at a City firm adds that panels made up of people from similar walks of life can inadvertently encourage unconscious bias.
“Panels that consist of people from similar backgrounds may mean panellists have similar frames of reference and so are more likely to come to similar kinds of conclusions,” he says.
“In terms of any panel, one of the things you’d need to know if you want to understand whether unconscious bias was a factor would be the extent to which the panellists were representative in diversity terms, rather than just which organisations they’re from.”
In Nash’s view, a chartered psychologist could be a useful addition to the QC panel.
“It would be someone who is not involved in the legal field, but who could add a new element to the discussion and can add value by knowing about judging and decision-making,” he notes.
“It may not be something the MoJ would want to pay for, but it could be well worth the extra time and money.”
The fine line between solicitors and barristers
Lord Mishcon was the first practising solicitor to be appointed an honorary QC in 1992, following a recommendation from the then Lord Chancellor, Lord Mackay. This was quite a radical move at the time, since at that point solicitors were not even eligible to apply for the regular QC rank.
It was in 1994 that solicitors were first allowed to obtain rights of audience to represent their clients in the higher civil and criminal courts, the Crown Courts, the High Court, the Court of Appeal and the House of Lords. The following year it was announced that solicitors with full rights of audience in the higher courts in England and Wales would also be eligible to apply for QC rank from 1996.
Nonetheless, there was considerable confusion in 2001 over whether Harriet Harman had been appointed an honorary QC or a substantive QC. Harman did not meet the normal criteria to become a silk, which include full rights of audience, extensive experience in the courts and at least 10 years’ practice experience.
On the contrary, Harman left active practice as a solicitor in 1982 when she entered Parliament, almost 20 years before she was made up to silk. However, despite not being eligible for the title, as she was appointed Solicitor General in 2001 Harman was automatically appointed a QC rather than an honorary silk that year, since convention dictates that Solicitors General must be QCs.
Who got the nod
Nelson Mandela; David Yale legal historian, former literary director of the Selden Society; Roger Hood legal academic, currently professor emeritus of criminology at the University of Oxford; Professor Paul Craig legal academic, currently professor of English Law at University of Oxford
David Harris legal academic; Alfred Simpson legal academic and writer
Hugh Beale legal academic, professor of law at Warwick University; Edward Caldwell former First Parliamentary Counsel; Reginald ‘Mickey’ Dias legal academic, former fellow of Magdalene College at the University of Cambridge; William Twining legal academic, currently Emeritus Quain professor of jurisprudence at University College London (UCL)
John Spencer legal academic, professor of law at the University of Cambridge; John Bell legal academic, professor of law at the University of Cambridge; Andrew Burrows legal academic, currently door tenant at Fountain Court and professor of the law of England at University of Oxford
No appointments made
Guy Beringer former senior partner at Allen & Overy; Sir Geoffrey Bowman former First Parliamentary Counsel; Professor Paul Davies legal academic and currently Allen & Overy professor of corporate law at the University of Oxford; Professor Dame Hazel Genn legal academic; Michael Napier chairman of Irwin Mitchell; Rosalind Wright former Serious Fraud Office director
No appointments made
Professor Margaret Rosetta Brazier OBE legal academic professor of law at the University of Manchester; Professor David Feldman legal academic, Rouse Ball professor of English Law at the University of Cambridge; Dame Janet Gaymer CBE employment lawyer and former commissioner for Public Appointments; Professor Richard Brabazon Macrory CBE professor at the faculty of law at UCL; Professor Thomas Martin Partington CBE former Law Commisioner
Philip Freedman CBE partner at Mishcon de Reya; Paul Christopher Jenkins Her Majesty’s Procurator General, Treasury Solicitor and head of the Government Legal Service; Professor John Tiley CBE legal academic and professor of tax law the University of Cambridge; David McIntosh consultant at employment and partnership firm Fox and former president of the Law Society of England and Wales; His Honour Judge Abbas Mithani circuit judge; Philip Richard Wood Allen & Overy special global counsel
Peter Freeman CBE former chairman of the Competition Commission and currently senior consultant at Cleary Gottlieb Steen & Hamilton; Professor Norman Palmer CBE legal academic, former chairman of the Treasure Valuation Committee and currently at 3 Stone Buildings; James Richardson legal academic and writer; Professor Sarah Worthington Legal academic, currently Downing Professor of the Laws of England,University of Cambridge; Professor Graham Zellick CBE legal academic
Sir Geoffrey Bindman founder and senior consultant at Bindmans; Professor Anthony Bradley legal academic, former UK alternate representative on the Council of Europe’s Commission for Law and Democracy (the ‘Venice Commission’); Philip Montague Raphael special counsel at Peters & Peters; Master Roger Venne The Queen’s Coroner and Attorney and Master of the Crown Office; Sir Stephen
Laws KCB First Parliamentary Counsel; Stuart Popham former senior partner at
Professor Ann Harrison Oliver legal academic, emeritus professor of Constitutional
Law at UCL; Michael Payton senior partner at Clyde & Co; Stephen Grosz head of public law and human rights at Bindmans; Charles Pritam Singh Dhanowa registrar and co-architect of the Competition Appeal Tribunal; Professor Sandra Fredman legal
academic and Rhodes professor of the laws of the British Commonwealth and the USA at the University of Oxford
Where’s the women? Some female suggestions for the MoJ
While law firm figureheads have been honoured in the shape of Guy Beringer (formerly of A&O) and Stuart Popham (formerly of Clifford Chance), Michael Payton of Clyde & Co is the first City lawyer to be honoured for having built up a firm and contributing to the globalisation of insurance legal services. But historically there have also been trailblazing female managing partners such as Jane Lister of Foot Anstey - in situ in the 1990s - and Lesley Macdonagh of Lovells (now Hogan Lovells). Macdonagh led Lovells through serious international expansion a decade ago, including a major German merger.
Among female human rights and civil liberties lawyers, Shami Chakrabarti of Liberty is an obvious omission, while Sarah Harman of Harman & Harman and Clare Algar of Reprieve are game-changing campaigners who have made a difference to justice.
In matrimonial matters, Helen Ward of Manches and Maggie Rae of Clintons are worthy of award, while in the City there is a host of women who have shaped the law. These include Vanessa Knapp of Freshfields Bruckhaus Deringer for her work on company reform, Deirdre Trapp also of Freshfields for competition work, Penny Gilbert of Powell Gilbert in IP, Margaret Chamberlain of Travers Smith on financial services regulation, Margaret Cole, lately of the FSA for enforcement, and Sandie Okoro of Baring Asset Management on both financial issues and diversity.