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)
Anonymous | 12-Apr-2012 9:27 am
‘Trendy’ left wing drivel that belongs in the Guardian.
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Eurolawyer | 12-Apr-2012 9:50 am
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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Anonymous | 12-Apr-2012 11:39 am
"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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John Flood | 12-Apr-2012 12:59 pm
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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Anonymous | 12-Apr-2012 4:20 pm
"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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C Nugent | 13-Apr-2012 12:17 pm
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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Alex | 13-Apr-2012 1:14 pm
I love the Dickensian aspect of the English legal system!
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John Flood | 13-Apr-2012 10:29 pm
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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Anonymous | 16-Apr-2012 9:03 am
It's good to see Dr Who speaking out on social issues.
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Anonymous | 16-Apr-2012 10:53 am
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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