Time for a silk cut?

The methods used for selecting QCs are under scrutiny.

What do top litigators think and how does the appointments system compare with those in other countries? Scott Neilson reports

The selection process for QCs is under fire yet again.

This time the heat is coming from two directions at once - the government and the judiciary.

Last month, Court of Appeal judge Lady Justice Hale criticised the government's 'secret soundings' system of appointing QCs, claiming it flew in the face of judicial independence.

Justice Hale's comments came at the same time as a speech by Sir Colin Campbell, the government's first commissioner for judicial appointments, who warned that his upcoming report - released this week - on the current system of appointments would contain significant criticisms of the process (see [2002] Gazette, 3 October, 6).

The watchdog said his office had had at least a dozen complaints from applicants for both the bench and silk over the past 12 months - and that several had been upheld.

The government appointed Sir Colin in March last year in a bid to deflect the argument that QCs are appointed in a climate of secrecy - a climate that discriminates against solicitors, women and ethnic minorities.

This year, for the first time, the Lord Chancellor's Department released a list of 55 commercial law firms which will be consulted about applicants for QCs, a process they have only been involved in for three years.

So what do these commercial litigators, those who instruct the silks, nowadays think of the QC kite mark? Is a selection process that uses secret files and confidential references still acceptable to the lawyers who determine which silk wins which briefing? Or has the repeated controversy done damage in the eyes of those who matter the most to QCs? Is it really even worth taking silk any more?

'The title of QC still stands for a great deal,' says Freshfields Bruckhaus Deringer litigation partner Paul Leonard.

'I know good people who have been turned down year after year.

Yet I would hate it if it became easier, or if some form of quota were introduced.'

However, some critics suggest that the entire silk system should be abolished, leaving the market to decide whom it thinks are the best advocates.

Yet the City's top litigators insist that for them at least, this is already the case.

Baker & McKenzie litigation partner Nick Pearson points out that the QC label is, by and large, irrelevant to his practice - and has been for some time.

'We know the senior barristers and we know whether or not they are any good, simply because of the length of time they've been around.

Whether or not they have QC after their name is irrelevant.

There are good and bad QCs.

It's really just a matter of knowing who the good barristers are,' Mr Pearson says.

Yet while litigation departments in large commercial or legal aid firms may be capable of deciding who they want to instruct, high-street practitioners and foreign clients normally need some help, Mr Pearson points out.

'The trouble with the City lawyers is that we tend to think we're the only solicitors in town.

But there are a whole lot of us out there who need specialists and won't know who to go to.

For them, the rank is quite useful.'

However, to many of the City's best litigators, the selection process does leave a lot to be desired.

'I literally cannot tell you what the hell goes on during the QC selection process,' says Herbert Smith's head of litigation, Harry Anderson.

'It completely bemuses me, when I look at the quality of people I know who don't take silk.

There are genuine grounds for addressing these issues.'

'The system needs to be as transparent as possible,' agrees Linklaters' head of litigation Christopher Style.

'I personally have considerable reservations about the appropriateness of there being a political dimension to the appointment process.

It is wrong that the Lord Chancellor is a member of the government.'

If the selection process here is full of perceived flaws, how does it compare with other common law jurisdictions? How do these countries handle appointments?

Canada and Hong Kong seem to have strayed least from the conventions of the English courts.

The former uses a committee process to review candidates and produce recommendations.

Although the government, the judiciary and the profession's governing bodies all have a say in who does and does not take silk, the minister of justice is not bound by the committee's recommendations and can effectively appoint whomever he or she wants.

Hong Kong's system is similar.

Statute lays down the eligibility requirements for taking silk and confers on the chief justice the discretionary power to make the appointments - but only after consulting the chairman of the bar council and the president of the local law society.

And what about the social laboratories of the South Seas? New Zealand has also stayed true to the English model, with the governor-general appointing silks on the advice of the Attorney-General and chief justice.

However, pressure for change is building there.

When a recent client survey asked whether power of appointment should remain with the government, 60% of respondents favoured a shift to a body that represented the entire profession.

Among the Commonwealth and common law countries, Australia seems to have drifted the furthest from the conventions of the English bar.

In the state of New South Wales, the bar now appoints silks after the Attorney-General announced several years ago that he would no longer make the recommendations.

Barristers chasing the title of senior counsel apply to the bar's president, whereupon a selection committee takes into account the views of some 390 barristers, solicitors, and members of the state and federal judiciary.

However, here the silk system remains rooted firmly in the past.

Nor is it any stranger to criticism.

Sir Colin's impending report - along with Justice Hale's recent comments - follow a 1992 examination that concluded that the existing system significantly disadvantaged women.

However, the 1994 Kalisher report concluded that the present system was the best that could be devised, although improvements were needed.

(Kalisher's main proposals included using formal published criteria for granting silk.)

Two years ago the Law Society pulled out of the consultation process in protest at 'secret soundings'.

Then, in March 2001, the silk system was criticised as anti-competitive in the Office of Fair Trading's 2001 report on competition in the professions.

So, is anything likely to actually change this time around?

'Personally, I think there's a head of steam building up this time,' says Mr Anderson.

'The whole saga over the collapse of Enron and Arthur Andersen has brought the issue of transparency into sharper focus.

The OFT can, in theory, make rulings.

We are now dealing with an organisation that actually has teeth.'

However, Freshfields' Mr Leonard is not holding his breath: 'It takes a long time to change anything to do with the legal system.

You have got to have something which is widely unjust and crying out for reform.

'And I don't think members of the public feel that barristers failing to make QC soon enough is really up there with the really big social issues.

'Our antiquated legal system is crying out for reforms.

It has seen some good ones already and there is a genuine desire for change.

But it's a slow, slow process.'

Scott Neilson is a freelance writer