John Flood, Professor of Law and Sociology, University of Westminster
Time to cut the silken thread
The QC system should be done away with, and the legal services market brought into the 21st century
It’s time we got rid of the Queen’s Counsel (QC). It is archaic, woolly in definition, and the only state-sanctioned ’quality’ mark I can think of.
These letters patent are issued by the Queen. We live in an age of transparency and accountability, and neither the process of selecting nor monitoring QCs is fit for this purpose. By all means have a distinction that speaks to expertise, but something as vague as expert at ’advocacy’ is woefully insufficient.
The selection panel is a mix of the great and the good, with ’lay’ members taking up half the positions (are barristers the only professionals that seek to liken themselves to the clergy by their use of the term ’lay’?). References are taken from the judiciary, practitioners and clients, but the judiciary still plays the biggest role behind the scenes.
There are other peculiarities. The cases that the panel wants candidates to write about should come from the previous two years of practice, not earlier. This is not like the Nobel Prize, where your whole body of work is scrutinised. No, the criterion is your excellence at the time of application. If there have been complaints about applicants they only have to disclose if they have admitted liability. Again, a strange benefit to those who never apologise or explain.
The most peculiar part is that it is a reward for advocacy that privileges one part of the legal profession over all others. Take the 2011 competition: out of more than 200 successful applicants two were solicitors and none were legal executives. If you take the legal profession as a whole, advocacy is a minority sport because most of the work handled is transactional. So if prizes are to be awarded to lawyers, why not all of them?
Moreover, the results show that it is the same old story - if you are a white, male barrister in civil practice your chances are much greater than anyone else’s.
So, in the new outcomes-focused legal world is there still a place for this archaic institution? The answer is no. It raises costs, often leads to doubling of resources on cases, but worst of all does not signify any measurable quality. It’s not as if QCs have to go in for a legal MOT every few years to see if they are up to the job. The Legal Services Consumer Panel has suggested incompetent QCs should lose the title.
Bizarrely, during the time the raison d’être of the silk was being debated, some arguing in its support said that its loss would raise costs and that the junior bar would have no standard of propriety to aspire to. Perhaps the most outlandish argument was that barristers are quasi-public servants and that the QC had a quasi-judicial role. Judicial? Well, this was said by a QC.
If we want to reward specialisation and expertise, let’s do it on a profession-wide basis, without the involvement of the state. Let’s make it open to all. Let’s drop the reference to the crown. If we need something, we could use Senior Counsel, but not if it merely replicates the QC.
Let’s make it a testable process, with outcomes that require continuing sanction.
Let’s bring the legal services market and its providers fully into the 21st century.
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Readers' comments (23)
Milly | 10-Apr-2012 12:15 pm
Just once, I would like to see a evidence based argument on this point. Sadly, there isn't one here.
Where is the evidence that the selection or monitoring of QCs is not fit for purpose? This distinguished academic says '[b]y all means have a distinction that speaks to expertise, but something as vague as expert at ’advocacy’ is woefully insufficient'. Why so? Is he really saying that expertise at advocacy cannot measured, or that it is, in his opinion difficult to measure and therefore due to his perception that it is difficult, attempts shouldn't be made at assessment and quantification? If that is so, perhaps he would like to speak providers of the post-graduate professional qualifications, both of which assess advocacy, and appear to be able to quantify ability.
The writer then moves on to question 'are barristers the only professionals that seek to liken themselves to the clergy by their use of the term ’lay'? There is a very simple reason they do that. Unless a client has utilised the direct access scheme, a barrister has a professional client in his solicitor, and a lay client - rather than use language as a means to have a little pop, why not suggest a reasonable alternative?
The writer then appears to suggest it is 'peculiar' that the application process requires candidates to give evidence of their last two years of practice. While I appreciate that the writer is an academic so therefore is au fait with having his entire body of work judged, in many application processes the assessors only want recent experience. Does it really hamper this selection process that it too limits it by time? If so, again, is there any evidence of that?
According to Mr Flood, the most peculiar part of all is that the 'reward' for advocacy privileges one part of the profession over another. No, really? Might that be because advocacy is the specialism of that profession, and solicitor advocates and Cilex advocates are a fairly new invention, therefore there are not yet enough of them senior and experienced enough to apply? Has the writer assessed the data pertaining to numbers of advocates at the bar, within the solicitors profession and within Cilex; narrowed that to those with the requisite levels of seniority to apply and determined whether the number of applicants from outside of the bar is related to that? I would suggest that is an exercise that needs to be undertaken if one wants to boldly suggest that the 'reward' 'privileges' those from one arm of the profession over another.
And then we get to the over-used point, that always has to find itself in pieces of this nature. The fact that the majority are white and male. Perhaps this is due to the professions being predominately made up of white males 20-30 something years ago, so that those senior enough to earn this rank reflect that. Again, an worthwhile exercise, to determine if this is discriminatory as seems to be suggested, is to look at the call of those holding the rank, determine the make up of the profession at the time they were called, and do comparative analysis of the data. If it shows that the rank is held by anything other than a representative make up, we have a problem. But the issue as it stands is that this is an easy charge to make without any data or other evidence explaining why.
Similarly so, if in 20 years the rank is not held by those representative of the profession now (certainly at the bar, call figures are showing gender equality), then again we have a problem.
We then move to the 'raising cost' argument, with again, a startling lack of evidence. What does the writer base his conclusions on? He states that there is a doubling of resources on cases and raising costs, but does not provide us with the evidence that supports his conclusion. I would be delighted to see it, should there be any.
I have no real stance on the rank of silk; however, before calling for changes that would wipe away many years of tradition, I would like to see some evidence, and I would like to see articles such as this backed up by the same.
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Anonymous | 10-Apr-2012 2:23 pm
"Let’s bring the legal services market and its providers fully into the 21st century."
Typical ex-poly bollocks.
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Jeremy Hopkins | 10-Apr-2012 5:03 pm
This is a thought-provoking piece and I think it is important that thoughts are provoked on this subject.
But my view is that many of the criticisms put forward here have been addressed in the revised QC applications process that was put in place in 2006. The selection process is now demonstrably independent and as transparent as such an inevitably subjective selection process can be.
The letters 'QC' bear clear meaning as far as the consumer is concerned, domestically and internationally, without anyone being under any illusion that their recipients are hand-selected by Her Majesty. And this is not really the point. The point is that the consumer needs to be confident that a QC provides "excellence in advocacy" over and above that provided by a junior barrister. My view - and that of the market, evidently - is that this is being achieved by the current process.
I agree that there is merit in considering ongoing assessment of quality, although it should be remembered that QCs are operating in a referrals market, in which the buyers are generally legal professionals who will not be slow to recognise any shortcomings. In this respect, it is self-regulating to a large extent.
On the diversity points, I agree entirely with Milly's comments above and would only add that the trends (as shown by published statistics) in this respect have in recent years been extremely positive.
Finally, I do not agree with the "doubling of resources" argument. The use of a QC for trial advocacy and strategic advice combined with a junior for drafting, research and preparation is well-proven to be an efficient and cost-effective way to carry out litigation.
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John Flood | 10-Apr-2012 5:55 pm
I'd like to thank Milly and Jeremy for their interesting and thoughtful responses to my op-ed article. In part I agree with Milly about evidenced-based research--it's what I do! However, this is one area where we lack it. As Jeremy says there is an issue about continuing monitoring of this "kite mark". Unlike doctors, who undergo continuing vetting as to their skills, barristers seem to have to go over this hurdle only once. That isn't good enough.
I don't even disagree with Milly's opinion on the teaching of advocacy. I'm glad it happens. But there is something a little strange where a barrister is expected to be of sufficient seniority to apply and then can only refer to cases of the last two years. Poor Rumpole, he never would have been able to include that classic case the Penge Bungalow murders if he'd applied. Nevertheless, advocacy as a specialism is still too vague. It would be rather like a surgeon being a good surgeon, but I'd like to know who's the best heart surgeon, for example.
Both Milly and Jeremy may not like my bringing up diversity but it is a significant issue in our society and it's not going away. While trends may be improving, I fear if we had to wait on the glacial pace at which they are improving, well something might happen to hell. But don't forget diversity is in the Legal Services Act--it must be improved.
I'm not using language to have a pop but rather to puncture some of the taken-for-granted symbols that the Bar and the legal profession invokes to protect itself. I would actually like to see the Bar much more open to research, which would ultimately benefit it.
Do clients understand? Not all. Some sophisticated ones do (including a raft of Russian oligarchs) but most people haven't a clue what a barrister is let alone a QC. Shall i mention wigs and gowns too? Enough said for now and thank you.
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Anonymous | 11-Apr-2012 8:16 am
Frankly, I am a transactional solicitor and why on Earth would it make sense to anyone to extend the QC title to transactional M&A lawyers? It is and has always been about advocacy and litigation. Criticising the QC system is apparently a fashionable thing to do on the left wing, but wanting to extend it to transactional solicitors is just plain nonsense and shows a complete lack of understanding of the legal market..
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Milly | 11-Apr-2012 10:29 am
Thanks for the reply John.
I understand why you may think advocacy as a specialism is vague, and I understand why you think it appears it is only tested once. However, that simply isn't the reality on the ground. Advocates are tested every time they get to their feet before a judge - I have seen a judge rip into a poorly performing advocate on many occasion, as has anyone who spends time in court. Aside from that, those who instruct advocates are not daft - an under-performing advocate is not going to find her/him self awash with instructions.
In terms of diversity, I don't disagree with raising it, but we have to deal with the reality of it. We cannot turn the clock back. The profession as was, is as was, and we cannot change that. However, the profession as is, is very different to that, rightly so, which demonstrates at least that the profession has looked to the past, learned lessons, and moved forward in a state of change - I don't think we can ask for more than that.
In terms of clients understanding, I again disagree. Whenever I have made the decision that I need to be lead, the client has welcomed it - if anything, they like to know that their case is felt to be so important!
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Francis FitzGibbon QC | 11-Apr-2012 3:18 pm
You miss out two critical elements of the selection process: (i) evidence-based proof of several 'competences'; (ii) the wide consultation among judicial and other referees. The scrutiny of applicants is extremely rigorous and thorough. Appointment is most definitely not a pat on the head for members of a dominant social-economic-ethnic group. Blame past recruitment practices into the legal profession for the demographic of appointments.
As for re-assessment: the new QASA system of accreditation for all advocates in publicly funded criminal law (my field) will probably have periodic reviews; and advocates are under permanent scrutiny by judges, juries and clients in every case. In an all too C21 way, advocates including Silks are in the market, and if the market thinks they aren't good enough, they won't get any work. Academia is a very safe haven by comparison.
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Anonymous | 11-Apr-2012 3:40 pm
It is a shame to rant beneath such well argued points (Messrs Flood, Milly and Jeremy) but, really, when is English society going to get off the bandwagon of knocking those at the top. We should be levelling up - not down. The QC system has done nothing wrong. It is a tried and tested institution that works and has demonstrated its quality world wide. The Bar and Silks in particular are quality tested by their reputation and their skill. I am a Solicitor. The very best Silks are instructed by the very best Solicitors. Those Solicitors won't call if the Silk is constantly getting battered by other Silks or if the client service or quality of advice is not good enough. What on earth does a wig and gown have to do with anything? It is unimportant - although it does show a level of prejudice against the Bar and an implication that everyone should find such traditional garments offensive. Well we don't. I am sorry but this just smacks of inverted snobbery and levelling down for the sake of levelling down. The notion appears to be that we should get rid of any perceived form of grandeur or tradition simply because it is not understood properly. Isn't that the same reason we got rid of splenid public buildings in the 60s and replaced them with ghastly tower blocks? Surely, only change something if you have an excellent idea to make it much better. I this case the Bar and Silks are first rate. World class. Elite in their performance not in their attitudes.
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Anonymous | 11-Apr-2012 3:51 pm
Always wondered if it didn't exist you'd struggle to create and sell it.
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Anonymous | 11-Apr-2012 5:58 pm
Isn't the main argument for QCs that "this is how we've done things for centuries!!"?
No other profession seems to need a "mark of excellence" issued by the Queen. It is an odd and arcane system out of pace with modern law practice, and with a strong old boys' network flavour that is hard to eliminate. Goes very well with the wearing of wigs, though.
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