The old QC selection system was not as bad as its press, but the new one should be better

An article published recently in The Times (23 November 2004) considered “the notorious system of appointing Queen’s Counsel through secret soundings”. Although I agree that many of the bar’s traditional systems and notions need overhauling, I do wonder whether the system was really so flawed in its concept, as distinct from the way it was operated in practice.

It is common in business recruitment for headhunters to try to find a suitable candidate, or shortlist of people, to fill a specific vacancy. When they do so, they are likely to rely on their own knowledge and research, and also on the acquisition of information from others who are well-placed to know that person’s true qualities. Or, to put it in the way that has been levelled at the QC system, they will rely on ‘secret soundings’.

Apart from headhunting, it is axiomatic that if you can fill a vacancy with someone who is known to existing members of an organisation, it would be worthwhile seeking their opinions. If people whose judgment you trust give a good reference to someone who they have had the opportunity to assess over a suitably long period of time, that is possibly the best method of selection. Surprisingly, that is the theory behind the old system of selecting QCs.

Turning to the new system, the selection of new QCs will be handled by an independent selection panel, which will include appreciable non-lawyer membership. This could work both ways. On the one hand, under the old system, good judges and barristers ought to know what are the qualities that make an outstanding advocate. On the other hand, they may well need the help of outsiders to see that some of the current procedures are out-dated.

The new panel will include one judicial member, although references are to be taken from members of the judiciary who the candidate has appeared before in substantial or difficult cases. That should be invaluable, as judges at a high level should be capable of recognising outstanding advocacy.

A human resources expert will also be included in the interview process. Progressive chambers have realised for some time that their selection processes require this. It surely will not be long before all good chambers are using top-quality selection practices, and if so, it must follow that selection for silk, and judicial office incidentally, should be equally careful.

Similarly, references will be sought from names given by the applicant, including those who they have led or been led by, instructing solicitors, and, where appropriate, clients. Of course, the complaint might be made that the applicant should not be allowed to select their own references, but one of the most substantial complaints against the old system was that barristers of merit might not be able to draw their good qualities to the attention of those responsible for selection. It is apparently envisaged that some of the referees will themselves be interviewed.

Another potentially interesting improvement is the provision for publication of information about the broad fields of law in which the candidate has demonstrated excellence as an advocate. Many barristers are highly specialised, but in some areas specialisation is not demanded. But specialisation breeds a high standard of knowledge and competence, and therefore this new requirement may be a significant step forward.

Two new additions to the system, taken together, may also have a major impact – an independent audit of the process, coupled with a complaints procedure for unsuccessful candidates. This may help the many good barristers who have applied for silk but been refused, who have had no way of finding out why they have been rejected, while others, who were possibly inferior, have succeeded.