It's not OK to KO QCs
4 July 1998
25 March 2013
5 December 2013
12 March 2014
12 February 2014
18 February 2014
A silk cut could seriously damage the health of the UK's legal culture, according to Bruce Houlder QC. Bruce Houlder QC is vice-chairman of the Bar Council's public affairs committee.
Derek Fatchett MP, Britain's Foreign Office Minister and proclaimed "ambassador of cool", said last week: "We must not be seen just as a country of new, trendy ideas. We are trying to build on the past and on the future."
A few professions and their associated seats of learning are among the last remaining bastions where colourful rituals and rites of passage still survive and enrich society.
They are characterised by their excellence and dedication to the upholding of essential freedoms.
It is therefore sad to see the recent call by Peter Reeves for the abolition of the title of Queen's Counsel in February's Adam Smith Institute Report.
I would argue that Peter Reeves repeatedly misses the point and perpetuates misconceptions about QCs, the silk system and the way it operates. I make common cause with successive Lord Chancellors who have re-enforced the value and importance they place in its continued existence.
The cost of taking a case rightly concerns Reeves, who unfairly seeks to blame the silk system for this.
His justification is that he wants payment to reflect work undertaken and the real merit of the work performed, rather than the "elitist" title of counsel.
No silk should disagree. But Reeves produces no evidence to show that in the marketplace, with the title of QC abolished, the best people could not command the same fees, or that they should not.
When solicitors are not bound to instruct QCs, how can this support an argument for abolition?
Should barristers not have their titles like any other profession, business or trade? Who minds if opticians now prefer to be called ophthalmic consultants? Who minds if policemen like to be known as "Super" or that the head teacher likes to be called "Sir"?
Should we deny our differences, call judges "mister" or "madam", deny High Court judges their knighthoods, and even strip the monarchy of its majesty?
We should take care that in our rush towards "cool Britannia" we do not punish commitment with the removal of professional advancement and recognition.
Some malcontents and the disappointed may feel better if QCs are consigned to history, but few will benefit.
Arguably, the client will suffer as a result of the talented becoming more overworked than they are already, rather than the present position which limits the pool of work available to QCs, and so enhances their ability to devote their time to complexities and the serious cases that their experience justifies.
It is sometimes forgotten that barristers take an enormous risk in taking silk and automatically disable themselves from receiving lucrative work both in the public and private sector.
There are those that have discovered these risks in an acute form. Once granted, letters cannot easily be returned, and the new QC may face financial disaster if the skills for which he was recognised as a junior find no marketplace in silk.
Much criticism has been levelled at the secrecy of the system of appointment to silk.
No one has come up with an alternative procedure that does not inhibit honesty in personal assessment. Within the practising Bar, the best are readily recognised, and on the whole the wider pool of 350 assessors reflects that view in the appointments made.
Given the number of aspirants, it is scarcely surprising that many feel aggrieved, some with good cause, that they have been passed over. Living with that is not easy.
We are, to the benefit of the public, a highly competitive profession and disappointments or setbacks are keenly felt. The pool of silks is necessarily restricted, as are the subsequent opportunities in terms of available work for those that take silk.
Silks provide a valuable pool of expertise. The cost of the selection exercise criticised by Reeves has a value to the public far beyond the advancement of its immediate purpose and provides essential information on suitability for the judicial office.
Solicitors advance through partnership opportunities and profit-sharing arrangements; they can refuse to accept work within their sphere of practice and they can now even apply for silk.
Barristers are not permitted three of these opportunities and we do not complain about it. Independence is as valuable to us as the guarantees it provides for the public.
If we do not represent good value then we do not deserve to survive. The vast majority of solicitors value a strong and independent Bar.
The maintenance of the silk system provides an important guarantee of quality both now and in the future, both from those who are silks and those who strive to attain it by the service they provide to their clients.