QC: the letters of the law?
1 May 2003
For the vast majority of barristers, joining the exclusive ranks of Queen's Counsel (QC) has always been seen as the benchmark of professional success. Alternatively known as 'taking silk', its attainment has consistently been seen as the key to elevation to the Bar's elite. Well, at least that used to be the case.
Over the last few years, life on the Front Row has been getting a little crowded (one of the perks of QC status is that the front row of benches in the High Court is reserved solely for their use, with juniors and solicitors seated behind).
The Lord Chancellor's Department (LCD), the body responsible for handing out those two little letters, has for the last two years appointed a record number of silks. Against an average of 71 new silks appointed annually since 1994, that figure rose dramatically to 113 in 2002 and then again to 121 this time around. With the number of applications to take silk dwindling, those who do apply now have a 30.7 per cent chance of success.
The timing of this splurge of new appointments has resulted in the Lord Chancellor, Lord Irvine facing accusations that he is motivated by a hidden political agenda and plans to reform the system by the back door.
Certainly, reform is on Lord Irvine's mind. Last month (April), shortly before publication of the latest silks list, Lord Irvine announced that he intended to consult on the merits of retaining the QC system. He told a committee of MPs that a new reform programme would "extend to the manner of appointment of Queen's Counsel and, indeed, it will extend to whether the status of Queen's Counsel should continue to exist or not".
This follows a 2001 investigation into competitiveness within the profession by the Office of Fair Trading (OFT), which concluded that it was "hard to see" what benefit the QC system brought to consumers to justify its effect on competition. It is easy to see why the Bar's already battle-weary traditionalists are pre-paring for another long fight to preserve the status quo.
The clamour for reform has further intensified following an impassioned attack, this time from within the profession's own ranks: 11 barristers from Matrix Chambers, where the Prime Minister's wife Cherie Booth QC is a tenant, have written
to the LCD calling for the abolition of the silks system altogether, arguing that the Government's role in the appointment process is not in the public interest.
Two of the 11, senior juniors Murray Hunt and David Wolfe, both of whom are on the cusp of silk eligibility at 10 years' call, have said that as a mark of protest they will not apply. In a letter to Bar magazine Counsel, they wrote: "The QC system cannot be justified as being in the public interest or promoting competition."
They dismiss the need for the award of QC as a 'quality mark', saying it does not distinguish a barrister as a specialist in a particular field, that there is no agreement about what actually constitutes quality, "nor a selection system which identifies such quality with sufficient reliability and fairness". Furthermore, Hunt and Wolfe write: "And to be a true kitemark, it must be possible to lose one's QC status - stories abound of silks who were ill-prepared, or out of touch with recent legal developments, or otherwise riding on their reputation as a silk."
It will perhaps come as little surprise that such a damning indictment of the system comes from members of such a liberal-minded set of chambers as Matrix. Their campaign will undoubtedly garner some support from the solicitors' side of the profession, which consistently balks at the perceived favouritism afforded to QCs in the courtroom, and especially after yet another miserly return (just one) for solicitor-advocates on this year's silks list. But it is unlikely that the 11 will be expecting a great deal of support from their professional peers at the Bar, where for
the majority, attaining silk continues to be viewed as the benchmark for professional success, regardless of the flawed appointment process or how poor an indicator of quality the QC kitemark really is. It is worth pointing out that one of Matrix's own, Philippe Sands, has himself been rewarded in this year's list.
For one thing, a silk is virtually guaranteed to earn more money, no matter what their particular field of specialisation may be, even though they may have to accept an initial dip in earnings while they become acclimatised to their newfound status.
But that fails to tell the whole story. A new silk prac-tising legal aid work can command better rates than they could the week before, but it could be harder to find employment. In the Government's long-running battle to keep the cost of the legal aid system down, it has become ever more difficult to justify the need for a silk in all but the toughest cases. New silks might be escaping the penury of junior legal aid rates, but they may no longer be able to guarantee a regular flow of work.
At the commercial Bar, the picture is more dependent on the economic climate. At present litigators on both sides of the professional divide continue to wait, many with mounting impatience, for the counter-cyclical splurge of 'I want my money back, I'm going to take you to the Commercial Court' reaction to a depressed economy. But litigation boom time has not arrived yet and that is keeping barristers' underlying rates down. Availability - or rather the lack of it - of all but the most sought-after QCs is not likely to be a major issue, which leaves clients with a straight choice: do you go for the established leaders at established rates, or try out the new kids on the block, who will be cheaper but untried at this level? Either way, it will be harder than ever for barristers to establish themselves as leading commercial silks.
Given that two years have passed since the OFT first reported its findings, and very little has happened since save the launch of numerous other consultations, do not expect those two little letters to be done away with overnight. But the questions continue to nag: how can a patently anticompetitive system (at least in the eyes of solicitor-advocates, the OFT and certain members of the Bar) remain in place? Given the swarms of new silks coming through the ranks, are QCs already on the brink of losing their elite status? And what do we do with all these new QCs?
In an ever-contracting market, there must be a few older, more established QCs looking around nervously at all those extra mouths to feed.