It is ludicrous to suggest that low-paid part-timers are QC material.
There are 132,635 solicitors and 15,899 barristers practising in England and Wales. So the number of people involved in applying for, or taking silk each year represents a minuscule proportion of lawyers.
Emma Dixon, a member of the Feminist Lawyers Society, wrote to the Gazette to castigate the over-representation of white men, and to suggest that women are being blamed for failing to apply. She argues that the system is indirectly discriminatory against part-timers, low-earners and so on. To support her argument, she suggested that QCs need to be more diverse, to make the bench more representative. But that consideration really only applies to judges at High Court level and above.
The diversity argument is typical of the identitarian left, which is preoccupied by relative power between various ethnic, sexual or racial groups. There is an irony in the feminist lawyer’s complaint, given that Dixon is white, Oxbridge-educated and hails from a ‘magic circle’ set. I don’t suppose there are many low-paid part-timers in magic circle sets, or City firms, apart from paralegal support.
A flaw in her critique is that applicants for silk are usually self-employed. It is entirely a matter for individuals whether to apply. For the self-employed barrister, taking silk carries a significant financial risk, as it means the loss of one’s existing practice. If you are a successful and busy junior, turning over, say, between £120,000-£240,000 a year, you have little incentive to take silk. A small number of commercial lawyers may opt to apply because international clients want their advocates to be QCs. In that environment, the financial risk of taking silk is mitigated.
But many women, and to some extent BME barristers, have opted to practise in less lucrative areas of the common law, such as crime and family. Public funding cuts have decimated those fields. Unsurprisingly, many practitioners are choosing to leave private practice. But the QC appointments process cannot be expected to compensate for this.
Indeed, it is ludicrous to suggest that low-paid part-timers are silk material. This is fantasy. The message for younger, aspiring women and BME practitioners is surely to choose more sustainable areas of practice. For barristers, it means finding tenancy in specialist civil sets that can attract high-quality work.
The existing system actually has a bias in favour of women. The commission says it recommended 52% of women applicants, compared with 43% of men this year. Last year, it recommended 25 women for appointment, 58% of all female applicants, compared with only 38% of men. This is an astonishing differential.
There are criticisms to be made of the system, which is ponderous and over-engineered. No other system of senior appointments I know of requires an applicant to fill out a 65-page form, or cite up to 24 referees. The quango that selects candidates has attempted to palliate this over-elaborate system by asking candidates to provide the names of at least eight (and up to 12) judicial assessors, six practitioner assessors, and at least four (and up to six) client assessors.
Of these, candidates are allowed to nominate two from each category. Not all referees are consulted, however, and the process is not very clear about how assessors are picked.
The problem critics of the system have to face is that taking silk is only ever going to be a niche activity. It is, primarily, a reward for advocacy, but the opportunities for senior advocates are more market-sensitive than some ideologues are willing to recognise. Funding pressures on the justice system and litigants mean opportunities for advocacy are likely to contract further. I expect the silk system will carry on for a while, but I am not optimistic about its long-term prospects.
Barbara Hewson is a barrister at 1 Gray’s Inn Square. Her views here are personal