by Lucy Scott-Moncrieff, a solicitor member of the QC Selection Panel

The results of the latest QC appointments competition have just been announced, and, once again, only a tiny number of the successful applicants are solicitors. The old system was widely seen as being unfair to some well-qualified applicants, including solicitors, but is the new system any better?

The QC appointments system, both now and in the past, is intended to identify excellence in higher court advocacy, which excludes the vast majority of solicitors, who do not advocate in the higher courts. Whatever the rights and wrongs of this state of affairs, the scheme should be judged against its stated objectives.

The main reason why so few solicitors become QCs is that so few apply. This year there were five applicants, of whom two were successful. As there are now nearly 5,500 solicitors with higher rights, this seems to be a puzzlingly low number of applicants, until you take account of the background.

The first solicitors to obtain rights of audience in the higher courts did so in 1994. Barristers obtain higher rights on completing their first six months of pupillage, and it would be an exceptionally talented barrister who would be appointed QC within 15 years of that date. Also, it is likely that they will have been engaged in advocacy, day in and day out, for most of that time.

Most solicitors with higher court rights use those rights to advocate for the clients of their firm, and will also be undertaking other work for their clients, including lower court advocacy. It will therefore take them much longer to gain the same higher court experience as their fellow advocates at the bar, and, as with so many things, consistent excellence is achieved through constant practice.

The very nature of a solicitor’s practice can also create obstacles: the QC appointments process requires applicants to display evidence of excellence in cases of substance, complexity, or particular difficulty or sensitivity. In some areas of law, for instance judicial review or commercial arbitration, such cases may only require one or two days in court. However, in many other areas, such as crime, family, or planning enquiries, cases that allow advocates to display excellence to a QC standard are more likely to take weeks or months, and many solicitors simply cannot be out of the office for that length of time, or, at least, not often.

The QC appointments process takes account of different types of practice, so that those whose cases seldom get to court, such as tax practitioners, are not disadvantaged compared with those who are frequently in court. However, as the appointment is for excellence in advocacy, if the case does get to court, the applicant has to have contributed to the advocacy.

Of course there are solicitor advocates who undertake long and complicated cases in court, as well as those whose excellence can be demonstrated in shorter cases, and that is why there is a small but steady stream of solicitors appointed as QCs.

Is the number of applicants going to increase? This seems likely.

First, simply through the passage of time, more and more of those with higher rights will gain the necessary experience to produce evidence of consistent excellence in substantial and complex cases.

Second, there is anecdotal evidence that some law students who want to specialise in advocacy are choosing to become solicitors rather than barristers, obtaining their higher rights very soon after qualification, and it seems reasonable to assume that they will be working in a similar way to barristers and so will achieve the same standards within the same timeframes.

Third, changes in legal aid mean it is likely that more criminal defence solicitor advocates will be spending more time in court, as firms reduce their reliance on the bar. Fourth, an increasing focus on ADR will give solicitors greater advocacy opportunities that will fit in with their other work.

Parity of numbers will take a while, but parity of esteem is already in place; the fact that solicitor and barrister applicants go through exactly the same process ensures that there can be no suggestion that a solicitor QC is less able than a barrister QC.