Why the silk system must scrap the secrecy
13 May 1997
The latest crop of silks leaves the selection system open to the usual charges of jobs for the boys. Martin Bowley QC (pictured) says it's high time that transparency got a look-in. Martin Bowley QC is a barrister at One KBW at 36 Bedford Row Chambers.
The 1997 Silks list has already been the target of a range of criticism. Only 5 out of the 68 successful applicants were women. Only one was from the ethnic minorities (for the sixth successive year). Only 13 practised from the provinces. If the list had accurately reflected the make-up of the Bar, the figures would have been 16, 7 and 23 respectively.
There are powerful practical arguments in favour of a two-tier system of counsel. For one thing, it identifies the leaders of the Bar in both advocacy and expertise. But it is surely an area which a new Lord Chancellor and a new government should closely scrutinise.
Even the suggestion that it provides a pool of practitioners from whom High Court judges can be drawn is open to doubt; of the 50 of us who took silk in 1981 only six have made the High Court Bench! It is hugely expensive in resources both financial and human. Will Lord Irvine be prepared to instruct his officials to establish - and publish - the cost to the public purse of running the system?
Patronage and secrecy are the factors which more than anything else disfigure British public and political life. The existing silk system encapsulates both to a remarkable degree. I do not doubt the good intentions of all those who take part in the consultation system - they must number something in excess of 250 - but in this day and age secret files and confidential references are surely unacceptable.
I always send a copy of any reference I write to the person about whom I am writing. By contrast, the Kallisher Report of 1994 - in many ways a deeply flawed and conservative document - clearly succumbed to judicial blackmail when it came down on the side of secrecy, largely because the committee had been "told by a number of people at various levels that they would feel entitled to, and would in fact, refuse to provide any information if it was to be made public. If that happened," the committee concluded, "the system would simply become unworkable." My reaction to those "people" would have been "thank you and goodbye".
Even the Kallisher Report had to concede that in many other professions "the trend is from closed to open systems of reporting on candidates for promotion". Its research covered the Treasury, the Ministry of Defence, the South Yorkshire Police, the Royal College of Surgeons, the Royal College of Nursing and the Church of England.
It conceded that "there can be no justification for any part of the process of selecting silks being secret". It agreed that "applicants are entitled to be told in general terms what has been said about them".
Yet it concluded that that entitlement must be "subject to the absolute confidentiality which the expressed views and comments of the various consultees on individual applicants should command".
When a career is at stake, natural justice surely requires that the applicant should know who has said what about them. How else can they provide an informed response to any criticisms which may be made?
There is nothing sacrosanct about the current silk system. It is by no means perfect. Some people always fail to be caught by the consultation network. Others fail in silk and within a couple of years hurry off to the comparative safety of the circuit bench. There are other models available - in Scotland, for example, and in New South Wales, where the Bar took over the system after the Attorney General announced that he would make no further recommendations.
In such circumstances, no doubt, a different title would have to be found. There is no magic in the initials QC or in the existence of "letters patent". In both the Republic of Ireland and in South Africa the comparable title is "Senior Counsel". I would have no objection to changing from a QC to an SC.
But ultimately the question for Lord Irvine is a constitutional one. How can the concept of an independent legal profession be equated with the idea of promotion within that profession being controlled by a member of the executive? If the response is that in advising on silk appointments the Lord Chancellor is acting as head of the judiciary and not as a member of the government I would reply that "Chinese walls" are as ineffective in the LCD as they are in the City of London.
If the system is to survive it must be transparently efficient, fair and open. Currently it fails all three tests. It needs to be reformed - and quickly.