The debate over the validity of the silks system rages on, but who’s asking the clients their opinion? By Andrew Clark

The issue of whether the silks system should be abolished, substantially reformed or left untouched is fast gathering pace. “The time has come to bring the debate to a head,” said Lord Falconer in his foreword to the Government’s latest consultation paper concerning the QC system, published in July 2003, ‘Constitutional Reform: The Future of Queen’s Counsel’.

Wholesale change would be an ambitious project, bearing in mind the system has been in place for some 400 years. The latest consultation paper follows the responses made to the Government’s earlier paper, ‘In the Public Interest’, of July 2002. If anyone doubted the Government’s mettle to see the project through, Lord Irvine, Lord Falconer’s predecessor as Lord Chancellor, removed them unilaterally by suspending the appointments system for 2004 pending the current consultation.

The consultation so far has been wide, with more than 150 formal responses to ‘In the Public Interest’ from professional organisations, firms, associations and individuals, including the Bar Council and the Law Society. The prospect of the silks system being abolished, or at least very substantially reformed, has never seemed closer; and as the responses demonstrate, opinions in the legal community are polarising.

Unsurprisingly, perhaps, respondents to the earlier consultation paper were overwhelmingly lawyers. What is less debated is what the clients – those at the sharp end of the QC system – make of it all. Particularly those international business clients the UK is so keen to attract. It is the clients, after all, who stand to gain or suffer from the proposed changes, yet their interests are so often ignored in many of the views expressed. Do clients appreciate the kitemark that the QC designation allegedly denotes? Do they welcome the opportunity to consult a lawyer appointed by the Queen on the recommendation of a Government minister? And most importantly, do they feel the system gives them value for money?

As a partnership that numbers among its ranks one of the first three solicitors appointed to silk (David Mackie QC), it is perhaps unsurprising that Allen & Overy‘s (A&O) clients are not at the vanguard of the abolitionists. Clients, especially domestic ones, value the fact that the QC advising them has satisfied someone that they have met a certain level of competence (although who that someone should be is more controversial). Clients not only have an expectation that they will receive the best possible advice (if only that were always true), but they also feel that by instructing a QC they are discharging their duty to obtain the right calibre of advice.

As one in-house counsel said: “In an increasingly regulated environment, with more disclosure obligations, more corporate governance and higher levels of scrutiny, boards of public companies are becoming more cautious. The QC badge has a cachet which provides reassurance to the board that they’re behaving reasonably in getting the right advice.” In short, not only does the badge carry weight, but the fact of obtaining the advice gives senior management another weapon in their armoury against the aggrieved shareholder, liquidator or regulator.

On the other hand, many international clients and lawyers are less sanguine about the system, particularly those from jurisdictions with a fused profession. Most simply want the best person for the job. Those more familiar with the split profession, particularly from Commonwealth countries, generally have a more sympathetic understanding of the QC status and are quicker to appreciate its merits.

But if the badge is justified, who should award it? Unsurprisingly, many of the respondents to the earlier consultation doubt whether state involvement in QC appointments is still appropriate. The Director General of Fair Trading regarded as “fundamental” the issue of whether it is right for the Government to have responsibility for conferring on selected practitioners a title that “manifestly enhances their earning power and competitive position relative to others”. Perhaps as an indication of where Government thinking is heading, the July consultation paper suggests the need for a “strong case” to be made to justify the Queen’s continued appointment of QCs on the advice of ministers.

The end-user client is probably less concerned about how the badge is awarded, although one in-house lawyer said that “it is difficult to see how the Government is qualified to make the appointment”.

For some overseas clients and their lawyers, the very designation of ‘Queen’s Counsel’ creates a mystique which itself makes the badge attractive. “It makes us look up in awe at all those abbreviations that distinguish the thinner upper layers of English society,” said one. Many favour the designation ‘Senior Counsel’ seen in other jurisdictions such as Singapore and parts of Australia. What is probably most important is that the title is awarded on the basis of the experience of those in the best position to judge and that the process is transparent. The current consultation paper reviews the options, including the possibility of an independent body overseeing appointments, one similar perhaps to the Judicial Appointments Commission. As the paper makes clear, we are still some way off consensus.

Finally, what of money? Does the QC title, as the Office of Fair Trading (OFT) has suggested, enhance earning power and result in practitioners being able to charge more without any corresponding uplift in quality or experience?

“It’s not the best system,” said one UK client, suggesting that a fairer system of grading would be desirable. In its response to ‘In the Public Interest’, the OFT questioned seriously the value of the current system to its customers. “We’re concerned that the QC system may still operate to distort competition,” the OFT stated, citing the “step change” in fees as one sign of this.

Appointment to silk can occasionally result in a step change in fees, sometimes just before a major trial when it is extremely difficult to instruct alternative counsel. However, this is the exception and any increase is generally more gradual. There may even be a reduction in fees on the basis that a newly-appointed QC will not be able to provide the necessary strategic skills, and may therefore be contributing less to a case than a busy and experienced junior. As long as there is a big enough pool in which QCs are swimming, market forces will apply.

There is also a general feeling among lawyers, reflected in the responses to the Government’s 2002 consultation, and one shared by many clients, that at times the badge creates a pressure to instruct a silk when a junior might do the job just as well. Clients embroiled in disputes, whether in court or arbitration, can suffer from the syndrome of matching one ‘big gun’ with another. Perhaps this is just another reflection of the assurance the badge engenders – but it is one that increases costs.

In a legal system that prides itself on the service it offers international commerce, the views of business on the silks system are fundamental to the thorough debate wanted by Government. Only then will we be successful in building a system relevant not only to the 21st century, but one that will enable the UK to continue as a leading centre for the resolution of international commercial disputes.

Andrew Clark is a partner in Allen & Overy’s commercial litigation group