John Higham QC

Today there is a general acceptance that law firms are businesses operating in a competitive marketplace. Not so long ago, it was heresy to imagine any such change to law firms, but times have changed. One such attack on the status quo is the increasing call to address the fundamental question of whether the rank of silk should be retained or whether the time has now come for it to be abolished. This is an issue upon which both solicitors and barristers are divided.
The issue has been clouded by references to earnings. It has been suggested that appointment to the rank of silk is a licence to print money. This is nonsense. For the most part, those appointed to silk are advocates; and money as an advocate – whether as a silk, junior, barrister or solicitor – has to be worked for. The image of the fat-cat silk is a gross oversimplification, and indeed a distortion. A silk, whether undertaking publicly or privately funded work, is likely to earn more than a junior; but then, in a competitive environment, the more experienced and skilled practitioner is in any event likely to earn more than their competitors.
The real question is whether those appointed to the rank are indeed more skilful than the generality of advocates. While one can point to instances of apparently able individuals who have applied repeatedly and unsuccessfully for silk, if the appointment is meant to denote that the individual concerned has displayed, to an exceptional degree, skills in advocacy and legal knowledge and ability, then it is inevitable that there are going to be a number of disappointed candidates. Financial success and being good on paper does not necessarily mean that you are going to be good on your feet.
In terms of those who have been appointed, my own experience, both formerly as a practising barrister and currently as a solicitor advocate, is that my opponents in silk demonstrate the levels of skill, competence and dedication that mark them out as leading advocates. This is not true of the junior bar. A client who instructs a silk can be assured that they are instructing an advocate of real quality and ability. This is the justification for the rank of silk. It is both a guide to and an assurance of quality.
How should silks be appointed? The suggestion of a qualifying examination is absurd. Ability in advocacy cannot be tested by a written examination. It is best judged in practice and it is the judges, the advocates and the instructing solicitors who are best placed to identify the outstanding candidates. Unsurprisingly, therefore, it is just such persons who are consulted.
I do not, therefore, have any fundamental objection to the process itself (though I have some sympathy with the view that the ultimate decision should be made by the Lord Chief Justice or the Master of the Rolls, rather than by the Lord Chancellor, who is both a politician and a member of the Government of the day). There is a greater transparency in the process than hitherto and disappointed candidates are now entitled to be told the reasons for their rejection. The assurance that particular comments will not be identified as having been made by particular individuals seems to be essential if those asked to comment on applications are going to be able to do so objectively.
If, however, solicitors are to have confidence in the system, it is important that solicitor advocates who meet the criteria for appointment to the rank of silk are appointed. Silk is not, and must not be seen to be, a privilege reserved for barristers only. Nevertheless, such appointments will follow only once skilled solicitor advocates start to appear on a more regular basis in the higher courts. Despite the marketing claims of some firms of solicitors, this is not going to happen overnight.
It will be a mark of the ability of solicitor advocates to compete in terms of skill and ability with the practising bar when solicitor advocates are regularly appointed to the rank of silk. In the days of the one-stop shop, now already upon us, such competition is bound to occur increasingly. Thus, it is actually in the long-term interests of solicitors, and more importantly their clients, that the rank of silk should be retained.
John Higham QC is a partner and solicitor advocate at Stephenson Harwood