An independent panel is selecting the first QCs for the 2005 silk round. But will this reformed system quell claims that it is merely a price-fixing cartel? Jon Robins reports


Are the letters QC an honour to which lawyers from all parts of the profession should aspire? Or is it, as one solicitor critic snappily says, ‘a price-fixing cartel to defraud the public’?


For several years, the Law Society campaigned against the old Queen’s Counsel system and even boycotted ‘secrets soundings’ – or ‘the open selection process... based exclusively on merit’, as the then Lord Chancellor, Lord Irvine, put it – for three consecutive years.


Now Chancery Lane is backing the kitemark, and two solicitors are on the independent panel that will select the first QCs for the 2005 silk round under a reformed system that has been removed from government bureaucracy. It was announced last month that Law Society Council member Lucy Scott-Moncrieff, managing partner at London legal aid firm Scott-Moncrieff Harbour & Sinclair, and Christopher Woolley, Chief Crown Prosecutor for South Wales, will be representing solicitors in the selection process (see [2005] Gazette, 21 April, 1).

The nine-member panel will be chaired by Sir Duncan Nichol, a commissioner for judicial appointments and chairman of the Parole Board. It also includes Dame Elizabeth Butler-Sloss, two barrister representatives, and three lay members.


Law Society President Edward Nally says he is ‘pretty confident’ that the new appointments process will deal with solicitors’ concerns about the kind of opaqueness that once prompted one judge to reflect: ‘I am part of the system and even I don’t understand it.’


‘What I hope is that the very existence of [a transparent] process will act as some sort of corporate conscience and as a consequence I think there will be greater reflection upon the balance, the nature of the applicants and their origin,’ Mr Nally says. ‘I don’t like any system that is hostage to the personal foibles of any one individual.’


The solicitor panel members were nominated by Mr Nally, while the two barristers – former Bar Council chairman Roy Amlot QC and deputy High Court judge Sonia Proudman QC – were nominated by Bar Council chairman Guy Mansfield QC. They will all sit for one year, after which there will be an open competition. The lay members have been appointed for three years.


Instead of informal soundings of senior legal figures, the new scheme will feature structured references from people who have dealt with the applicants, and that will include input from clients as well as their judicial and legal peers. The applicants will also face interviews to assess their interpersonal skills.


The Law Society is also hopeful that the revised system will increase the number of solicitor-advocates to make the QC grade. So far only eight solicitors have made silk since they became eligible in 1996, out of 53 who have applied. But Mr Nally adds that he is ‘not embarrassed by the fact that excellent barristers can and should come through this process’.


For its part, the bar is apparently willing to welcome more solicitor QCs on board. ‘We hope and expect to see more as a result of this process,’ comments Bar Council spokesman Jon McLeod. ‘When the Law Society was actively campaigning for the abolition of the rank of QC, we didn’t believe a public rank could or should be denied for solicitors if they could demonstrate the competencies relevant to the rank.’ It is ‘heartening’ to see a president of the Law Society supporting the system as a means of recognising solicitors’ skills, adds Mr McLeod.


What does the bar make of those critics who just see QCs as little more than an excuse to pile on the fees? It was the solicitor and Labour MP Andrew Dismore who made the ‘cartel’ jibe. ‘If someone is worth so many thousand on Ash Wednesday, are they worth double that on Maundy Tuesday?’ he argued. ‘Surely it’s exactly the same person doing exactly the same job.’ According to Mr McLeod, Mr Dismore took ‘a particularly jaundiced and melancholic view of the QC title. We hope the reform of the system will help him out of his depression’.


Mr McLeod dismisses the movement to scrap QCs as ‘a small bandwagon with not many travelling companions’. He says: ‘There has been a full review of the system now by the Office of Fair Trading (OFT) and policy conclusions have been drawn by ministers of the same political colour [as Mr Dismore] and [the new system is] now widely supported.’


A couple of years ago it seemed the QC was a species marked out for extinction. When Lord Irvine addressed the 2003 silk recipients, he said: ‘If silk goes, that would make you the last in an illustrious line of leading counsel recognised by the state as leaders of the profession.’


Ms Scott-Moncrieff specialises in legally aided mental health work. Why was she interested in joining a body to choose silks? She explains that it was more out of a desire to promote greater equality and diversity in the profession rather than out of respect for a tradition. Only about 10% of silks are women. ‘I don’t have a problem with the idea of QCs,’ she says. ‘It’s odd that there is no equivalent system for other areas of the law. I think that’s a pity, and anything that gives people information about quality is probably a good thing.’


Does that mean that she does not share concerns about the fee-inflating effects of taking silk? ‘The amount a QC is paid is another story,’ Ms Scott-Moncrieff replies. ‘In private work, there is a free market but in legal aid QCs should be treated as [for example] equivalent to senior consultants in the National Health Service and paid accordingly.’


Mark Clough, a partner at City firm Ashurst Morris Crisp and chairman of the Solicitors Association of High Court Advocates, is a first-generation solicitor QC, appointed in 1999 – although uniquely among this small cadre, he spent much of his career at the bar before switching to the solicitors’ side. ‘Although I am a competition lawyer myself, I’ve never really understood the OFT’s concerns about fees that are attached to QC status,’ he argues.


‘In the market of City law firms, it is the litigating solicitors that instruct QCs and they have a pretty good idea of who the top, middle and bottom [barristers] are in a particular practice area. The QC rank helps to explain that, but I don’t see calling them QCs makes any more difference.’


City firm Herbert Smith this month claimed to be the first UK law firm to establish a dedicated advocacy unit, after attracting respected QCs Murray Rosen and Ian Gatt to the firm, to hone the skills of their 43 solicitor-advocates (see [2005] Gazette, 28 April, 5). So why does a silk at the commercial bar cross over to join private practice? ‘It’s the right way forward for my kind of advocacy,’ says Mr Rosen, a former head of chambers at 11 Stone Buildings, London.

He maintains that the rank of silk has a relevance to commercial clients, but adds: ‘Whether that justifies doubling their fees simply because they have the rank I’d doubt.’ Where the silk system has fallen down is the ‘distance between the clients instructing solicitors and the silk’, he argues.


‘That distance is referred to by those who like the system as giving independence to the silk but it also creates a lot of client distrust and is unnecessary because good counsel will still have the independence of mind and the authority.’


The barrister reckons that knowing ‘virtually nothing about the client, very little about the history of the case’, and not having ‘anything like the knowledge of the instructing solicitor who has lived with the case for months’ has created a perceived distance.


Chancery Lane hopes that a new QC system will start the process of broadening the definition of ‘silk’ to incorporate qualities beyond strict advocacy. ‘The Law Society has made it clear to the Lord Chancellor that we look forward to the day when it is extended to transactional lawyers,’ says Mr Nally. Mr Clough, who also represented the Law Society in the consultation over the future of QCs, says the new system contains ‘qualifying elements specifically designed to reflect the nature of the litigating solicitor rather than the barrister’.


‘Advocacy can be quite a broad term and the preliminary stages of a dispute are as important as the beginning and the end, if not more so,’ he adds.


It is unlikely that the Bar Council will be willing to contemplate any radical redefinition of QC. Mr McLeod says the title is about advocacy and ‘the distillation of the facts of law in a case in an oral and sometimes written form’. Anyway, he maintains, the debate about QCs is over. He says: ‘For now the main issue is an administrative one about making it run smoothly and ensuring it operates in a balanced and fair way.’




Jon Robins is a freelance journalist