THE SOLICITORS' Association of Higher Court Advocates is understood to be pressing the Law Society to take legal action against the Lord Chancellor for his refusal to allow solicitor advocates to apply for silk.
The association is taking counsel's advice on its chances of taking action, probably in the form of judicial review.
The association's chair, Paul Hampton of Piper Smith & Basham, says: ” We hope to be able to resolve this matter without having to resort to court proceedings. We take the view that it is both inexplicable and unacceptable and hope we can demonstrate this to the Lord Chancellor, together with the Law Society.”
Hampton says: “Judicial review is clearly one of the options we would consider. We would do so only if we were unable to resolve this satisfactorily and if the advice we received indicated we would have a good chance of success.”
Barristers must have 10 years' practice experience to be eligible for silk. Solicitor advocates have only existed for a fraction of that time, but Hampton points out that many have had sufficient previous higher court experience as UK barristers or advocates in other jurisdictions.
Walter Merricks, the society's assistant secretary general (communications), says: “We have made representations to the Lord Chancellor's Department saying we think this is not sensible and we urgently want to consider the position this puts us in.”
Currently 155 solicitors have higher court advocacy rights and around 80 are now members of the association.
While the refusal to allow solicitors to be considered for silk affects only a small number of people, it “may have wider ramifications in the future”, warns Merricks.
But the Lord Chancellor may consider this issue among possible changes to the system after the Bar Council has taken a final view of the Kalisher report on the silks system, he says.
The Kalisher report concluded that the system is the best that can be devised, although improvements are needed.
The main proposals included using formal published criteria for granting silk, appointing solely on merit and rejecting positive discrimination in favour of women and ethnic minorities.