John Flood, Professor of Law and Sociology, University of Westminster

Time to cut the silken thread

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  • 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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  • "Let’s bring the legal services market and its providers fully into the 21st century."

    Typical ex-poly bollocks.

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  • 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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  • 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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  • 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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  • 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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  • 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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  • 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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  • Always wondered if it didn't exist you'd struggle to create and sell it.

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  • 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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  • ‘Trendy’ left wing drivel that belongs in the Guardian.

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  • Milly has already pointed out the defects of this piece far more patiently than I could and the proffered defence only serves to highlight its flaws.
    To pick up on just one point; "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" - this simply revals the author's lack of understanding of the legal profession.
    Advocacy is of course always conducted in the context of a case that can be classified within a particular legal specialism, but that does not prevent an assessment of the quality of the advocacy in a particular case. More importantly, if a barrister has risen to become a QC by doing mostly, say, landlord and tenant cases, then the market will understand perfectly well that that is the field in which a high level of competence as an advocate has been demonstrated. It cannot seriously be suggested that, simply because he is a QC, our landlord and tenant barrister will thereby be showered by solicitors with instructions in other fields. Going back to the analogy with surgeons, it seems to have escaped the auhor's notice that there is a single Royal College of Surgeons and the accolade of a fellowship of the RCS (which is comparable to being a QC) is granted to surgeons who demonstrate a high level of expertise in all fields of surgery. The analogy with surgeons fails even on its own premises.

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  • "It is an odd and arcane system out of pace with modern law practice." But this comment doesn't explain why something that is "odd" and "arcane" and "out of place" is necessarily bad, needs reforming or doesn't work. Rather, the view reflects a degree of prejudice and a lack of understanding. Indeed, the bar is not odd to me at all. I instruct them regularly and they serve a valuable purpose. I work in a US company and am constantly proud that the English Bar are amongst the very best lawyers in the world and, in some respects, can be equated to the Special Forces of the legal world. Perhaps reforming is not what the Bar needs. What the Bar needs - desperately and quickly - is rebranding. If there is one criticism that sticks it is that the Bar is woefully out of touch in a marketing sense. They need to spend more on their collective branding. If you want one example, just go and look at most sets websites ......awful. Just awful. Once the Bar rebrands then the socialists will be partially deprived of their political arguments.

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  • I'd like to pick two points that miss the mark, in my view. Milly says every time a barrister appears in court he/she is evaluated by judges. This is not a systematic process. There was some research some years ago that showed the standards of advocacy weren't that great among the Bar. I suspect they have improved but our measures of these may well lag. After all it is the clients and state who pay for these services that need to be reassured. The granting of a QC is insufficient guarantee as it stands.
    Secondly my comparison with the medical profession, as Eurolawyer picks up, does work. The Royal Colleges are involved in the development of curricula for specialisms but they are not the sole evaluators. That is mix of the GMC, colleges, NHS working collaboratively. Nothing of that sort exists in law. Moreover, these systems are based around "specialties" not the vague category of "good surgeon" or "good psychiatrist". At the moment we let the market determine the quality of the specialism, but we could do with a more rigorous, analytical and sustained system.

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  • "After all it is the clients and state who pay for these services that need to be reassured." Who is complaining that they do not receive sufficient reassurance? Where is the evidence for this?
    "The granting of a QC is insufficient guarantee as it stands." Why not? Where is the evidence for this statement?
    "...we could do with a more rigorous, analytical and sustained system." But where is the evidence of this need? Simply because it would be "better"? That does not seem a compelling reason.
    Prof Flood is a highly distinguished academic (look at his CV), but this article has the ring of a commissioned op-ed piece designed to stir up debate, but lacking in any real arguments to back it up. The basic points appear to be (1) it's odd and arcane; (2) although there is no evidence of dissatisfaction, one could design a better system.
    Not good enough really, and the citation in the article of one QC's misguided notion of a silk acting in a quasi-judicial role serves only to reinforce the view that Prof Flood is engaged here in rhetoric, not reasoned analysis.
    I would also add that nobody outside of left-wing academia uses "privilege" as a verb. Perhaps that betrays the political views underpinning the article. Nothing wrong with that (I too am a left-winger) but at least call it what it is.

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  • There is also a mistaken impression running through the article that taking Silk is a gateway to glittering prizes and wealth.
    For some it is. For many, it is not.
    There are many, many QC's out there with incomes far below that of senior barristers who have not taken silk.
    The article may have some resonance with a readership who are not completely au fait with the process.
    But the readership of the Lawyer is rather more discerning and can therefore see this article for what it is - someone critisising a system they haven't troubled themselves to research properly and therfore doesn't really understand.
    No doubt the Daily Mail will reproduce it soon.

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  • I love the Dickensian aspect of the English legal system!

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  • Let me correct a couple of misapprehensions in the last couple of comments. First, yes this is an op-ed piece. It is designed to stimulate debate. In that it's been a success. Second, it is not a research piece. Most of my research--see www.johnflood.com--is empirically based and is rigorous. Yet what is clear from the comments is that we do need good research on this topic in order to come to a proper policy position. I've been unable to find much research in this area. The paper by the QC I refer to was submitted to the Ministry of Justice as a Bar response to the issue of QCs. I do think it's flawed. But believe me I've searched for good, empirical research on the QC system and it's not there.

    There are far too many assumptions in the arguments put forward in these comments. The one which disturbs me the most is the implicit assumption that the public interest and professional interest coincide. They do not. Nor are professionals the best decision makers on the shape of the market for legal services. Self-interest soon takes over. One of the reasons for the Legal Services Act was that professional interest distorted the market.

    I would urge the Bar to institute rigorous research on QCs. The system needs it.

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  • It's good to see Dr Who speaking out on social issues.

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  • John, please provide a citation for where we might find the paper by the QC you refer to. You suggest it speaks on behalf of the Bar - I'd like you to back up that assertion, please.

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  • I am appalled at the aggressive and condescending nature of some comments on this article. Lawyers should be able to make a point and respond to arguments without resorting to petty insults. There is simply no excuse for arguing against a view your disagree with through nonsensical childish comments like "left-wing socialist claptrap".

    I disagree with some parts of the article, such as the idea that it is impossible to assess one's skills with advocacy. It is similarly impossible to objectively assess one's contribution to science for a Nobel prize, one simply has to make an educated guess.

    I agree with many of the other points. It seems extremely odd that only the last two years are taken into account, when building a reputation for excellent advocacy takes much longer. I also find it difficult to see why the QC tag should be focused on a small area of the profession. There is no real reason why the QC process couldn't be extended to, for example, M&A lawyers, by asking clients and the other side about that lawyer's performance.

    I find it difficult to support the QC system because I am not sure what it is trying to achieve. As Mr Nugent pointed out, the QC monikor does not guarantee instructions and many clients do not understand or care what the letters mean. That said, I am not sure the institution is doing harm.

    The author suggests that a universal system would work more effectively. This is the system used in the United States where people add "JD" or "Esq." to their name to indicate that their are practicisng lawyers rather than, say, legal consulstants. This makes a lot more sense to me than the current QC system.

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  • To: Anonymous | 16-Apr-2012 2:30 pm

    For me, the real problem with Prof Flood's argument is that, in the face of some fairly obvious points, he has retreated at haste into "yes, this is the sort of thing that is deserving of research". All that does is show up the flimsy nature of the call "?It’s time we got rid of the Queen’s Counsel (QC)".

    If you think that the issue here is distinguishing practising lawyers from legal consultants then I respectfully disagree, and would also suggest that you do some more thinking about it!

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  • The paper I refer to on the quasi-judicial aspect of QCs is by Sasha Wass QC and can be found at http://www.dca.gov.uk/consult/qcfuture/responses/qc332.pdf

    In her paper she asserts that barristers are quasi-public servants and QCs have a quasi-judicial role hence the state's interest in appointing QCs even overseeing barristers. It's an ingenious if flawed argument.

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