Silk road is closed to employed Bar
27 October 1998
Out of 5,000 in-house counsel, only nine are QCs. Derek Wheatley QC wants change.
You could say that 1 April 1997 was not the best day to write to the Lord Chancellor about granting honorary silk to employed barristers. But I did.
I still await a reply. April Fool's Day indeed.
I have been involved in the honorary silk process since 1982, through my role at the Bar Association for Commerce Finance and Industry (Bacfi) - the employed barristers association. But for the past two years I have been looking to opt out, without much success.
Since 1996, I have not been a member of the Bar Council and feel I am therefore less able to judge the merits of potential honorary silk candidates because of my lack of contact with Bar members. During the same period, not a single employed barrister has been given silk.
It is easy to assess barristers in private practice who want to take silk. They make a written application giving referees and appear almost daily before the judges who can assess and pass their views on to the Lord Chancellor.
For employed barristers, the selection process is more difficult. Assessment by judges is unavailable. Employed counsel do not appear in court. Discriminatory rules, hopefully soon to be changed, forbid it.
Many employed barristers do not want to take silk, but to add QC to their names can be immensely valuable. This is true not only in dealings for employers, but also in encounters with private practice brethren, so as to avoid any illusory prestige gap.
For the employed barrister looking for silk, no applications are made and no referees given. But appointment criteria are clear. They were hammered out years ago and repeated recently: those selected must have made an exceptional and distinguished contribution to the law and have held an eminent position in some field of law. Their appointment as honorary QC must maintain the "high quality" of that office. Distinction is the criterion.
These qualities are the same as for those appointed in private practice. But what is the best way to find candidates in employment? For me it has meant an annual consultation with eminent figures in the law and in the City. It has meant knowing other employed barristers and being in close contact with the Bar Council.
But this has become difficult since I left that body. And in the past few years, I have gone through a period of growing frustration with the long process of submitting recommendations. I have become used to seeing none of my suggestions making Maundy Thursday's published list.
Have I been getting it wrong? No employed barrister has been appointed in years. Is there discrimination which needs to be discussed?
Each year 70 or 80 barristers in private practice are made QCs. At the last count, there were 9,369 barristers in private practice, of whom 974 were QCs.
The Bar Council has no record of employed barrister numbers, but the best estimate is well over 5,000. There are only nine employed silks, honorary or otherwise. Meanwhile, the Bar Council has records of only 83 barrister academics, of whom 11 are QCs. This is an even greater proportion (over one in seven) than private practice QCs (one in 10). It must be irrelevant that Lord Irvine was an LSE academic for four years.
Are employed barristers getting a rough deal? Are they becoming the Bar's poor relations? The number of employed counsel is also minuscule within that other prestigious Bar group - the benchers who control the four Inns of Court. Out of 886 benchers, only four were identified as employed barristers.
Since April 1997 I have been trying, almost constantly, to set up a meeting with at first Lord McKay, and then Lord Irvine, but with no success. I did receive a letter from the LCD in August 1997 which applauded my idea of a small committee to take my place and a meeting was agreed in principle. However, despite my best ongoing efforts, this never happened. I was later told there were "no slots" for a meeting.
Despite these problems, I had to go through the recommendation process again this year and came up with two names of obvious merit, well supported by their colleagues.
But again, no employed barrister was appointed, while three academics won silk. Are academics really fifty times as meritorious as their legal brethren who merely work in commerce, finance or industry?
Again, I urgently looked for a meeting with the Lord Chancellor. In April this year I was promised a prompt reply. But yes, you have guessed it, I am still waiting. For a busy Lord Chancellor, the affairs of employed barristers will not rank highly. But even so, Lord Irvine, with the greatest possible respect: RSVP.