The Queen's Counsel system is under unprecedented scrutiny.

But what are the alternatives? Rachel Rothwell looks at the experience around the world in appointing senior counsel

The Queen's Counsel (QC) system is on the chopping block.

In its recent annual report, Sir Colin Campbell's Commission for Judicial Appointments said it creates a wide picture of systemic bias against solicitors, women and the ethnic minorities - and the creation of the government's proposed independent appointments commission will only begin to address this.

It criticised the 'lack of audit trail' relating to the reasoning behind selection decisions, and noted the inherent dangers of a system that placed too much emphasis on the personal preferences of one person.

Sir Colin called for a 'fundamentally fresh approach' (see [2003] Gazette, 9 October, 3).

Last week, the Law Society and the Office of Fair Trading (OFT) both called for the current QC system to be scrapped in their responses to the government's consultation on the future of the advocates' award (see [2003] Gazette, 23 October, 4).

The Society favours an accreditation system run by the profession.

The Bar Council is fighting a rearguard action to maintain the system of Crown appointment.

The government consultation paper expresses no firm opinions either way on the future of QCs, but says the system needs to be justified in the public interest to continue in its present form.

The consultation closes on 7 November.

But what would any new accolade system look like, and do we need one at all? After all, they seem to manage well enough without one in the US and continental Europe, and the Canadian government stopped appointing QCs in 1993.

Criminal barrister Joel Bennathan of Tooks Court Chambers, London, says: 'Even if we get rid of QCs, we will still need some sort of senior rank.

In the big publicly funded areas such as crime, and to a lesser extent family, there are thousands of barristers.

A solicitor or lay client simply won't know all of them.

And when you have a client who is facing life imprisonment, you need as many aids to picking the right barrister as you can get.

You may not instruct someone just because they are a QC, but it does give you some confidence in their ability.'

Of course, solicitors can always see how many years' experience a barrister has, but a distant year of call will not necessarily guarantee high quality.

So do clients, who after all are the ones who find themselves at the sharp end of the sudden hike in fees once a barrister reaches silk status, find that the QC suffix adds any value?

Chris Arnull, associate general counsel at accountants KPMG, says they do: 'Clients would miss the QC status if it were not replaced with something of equal standing and recognition.

It wouldn't really matter what the label was as long as the new system were equivalent in terms of value, seniority and expertise.'

He says a QC opinion is useful for in-house counsel.

'The trouble with the law is that nothing is really final, unless you have a court ruling on a point of law from the House of Lords.

If you're dealing with a matter which is not being litigated, and you need to know which way to turn, it is tremendously helpful and comforting to be able to say: "We've been to leading counsel on this."

'That way, no one will tell you that you shouldn't have followed that advice.

QCs are not cheap, but you are paying for the advantages they bring - and they carry an awful lot of weight overseas.'

Julian Lew QC, a partner with City firm Herbert Smith, is one of only eight solicitor silks (excluding Solicitor-General Harriet Harman, who became a QC automatically on appointment) appointed in the seven years since solicitors have been able to apply, during which period, 63 have sought the mark.

He agrees with Mr Arnull: 'The QC title is very respected abroad, although not everybody understands what it means.

I have been asked whether I advise the Queen.'

He sees an important advantage to the way the QC system works at the moment: 'Judges I have spoken to are keen to have some sort of system in place, because among other things, it makes juniors behave better.

It stops, for example, five-year-qualifieds who are fighting to prove themselves becoming overly aggressive with their opponent or judge.

They don't want to get a reputation for not toeing the line because a good name is very important when a few years later they wish to apply for silk.'

Whether an eager-to-please attitude towards the judge is necessarily a good thing for solicitors and their clients is another matter.

If the Lord Chancellor does hand over his powers to award a gold star to advocates, then the senior judiciary is one candidate to take over the task.

After all, judges are in a good position to assess a candidate's advocacy skills - provided fortune has been kind enough to ensure they have actually sat on a case in which the silk-to-be has acted.

But there are other options - the Law Society, in its response, says 'it is within the competence of the professional bodies to devise rigorous accreditation schemes for senior lawyers who wish to demonstrate their expertise and experience'.

In South Africa, barristers achieve 'senior counsel' status as a testament to their enhanced advocacy skills.

But there, the selection process is run by senior counsel, rather than the judiciary.

Willem van der Linde SC, chairman of the General Council of the Bar of South Africa, explains: 'While senior counsel are technically appointed by the president [of the republic] as advised by the Judge President, barristers' applications are considered by a panel of senior counsel and, in practice, their recommendation is rarely strayed from.

It is not the decision of judges.'

In the largest of the country's 12 jurisdictions, Johannesburg, the panel will be made up of 12 senior counsel and a quota of five new senior counsel will be appointed from 30 or so applications.

The Irish system of appointing senior counsel, which is only open to barristers, contains many of the same difficulties as the system this side of the Irish Sea.

The decision rests in the hands of the Chief Justice in consultation with the Attorney-General and the president of the High Court.

Michael Collins SC, based in Dublin, says: 'The process is very informal.

A barrister of around 11 or 12 years' call can meet with the Chief Justice to let him know that he wishes to become silk.

The Chief Justice will then either encourage him or give him a hint that it is not going to happen.

He can consult anyone he likes on his decision, but he is most likely to know the barrister and have seen him in court many times, because the Irish bar is so small.

'The process is not very transparent, and there is no formal redress if you are turned down - you can simply reapply.

But there are few complaints of unfairness; if anything, some people think the system lets too many people through.'

The senior counsel title also exists in Australia, where it has replaced the old QC title in most states.

Khory McCormick, a partner at leading Sydney-based firm Minter Ellison, says: 'In Australia, there is no political involvement now in the appointment of senior counsel.

'The system in Queensland is fairly typical.

Applications are made to a panel of four senior counsel, which is rotated annually so that it is not always the same people involved.

Those four will show the list of applicants to about 60 people, who will be senior and junior members of the bar.

From their comments and the candidate's application form, the panel will determine which are the compelling candidates and pass these on to the Chief Justice, who will test these names with the judiciary.

'There are no formal procedures for ensuring gender and ethnic balance but in some states, such as Victoria, there are gender equity committees which encourage the promotion of women.'

South Africa employs a quota method to preserve gender and ethnicity at senior counsel level.

That might not be appropriate in England and Wales, but there may be a need for a guard against sexual and racial discrimination.

'Any panel set up for selecting QCs or senior counsel needs to be selected from a broad pool,' says Mr Bennathan.

'There should be people there with experience in equal opportunities law, to ensure that judges or QCs are not simply picking those who come from similar backgrounds to themselves.

And it would be great if solicitors could be involved.'

Mr Arnull takes up this point: 'Solicitors are very qualified to make an assessment of advocates.

They are able to judge their knowledge of the law on a fully-informed basis, and they can also assess their bedside manner - the way they relate to clients.'

One of the main criticisms of the current process relates to the so-called secret soundings that surround it.

Those soundings are the reason the Law Society withdrew from the process several years ago.

But some practitioners maintain that the system has already improved a great deal in recent years.

Indeed, many claim that most personal comments disappeared when Lord Irvine introduced a 'when and where' policy to back any gossipy allegations with examples and specific details.

Michael Caplan QC, a partner with London-based Kingsley Napley and chairman of the Solicitors Association of Higher Court Advocates, says: 'The system in place allowed those unsuccessful to have a telephone conversation with officials from the Department for Constitutional Affairs.

They were, I understand, told frankly the general comments made, although identities were not revealed.

If possible, guidance was also given.'

That may be the case, but from the candidate's viewpoint, that conversation will come too late.

In South Africa, applicants can request a hearing in which they can present their case as to why they should be made senior counsel.

Soundings are taken confiden-tially from their peers and the judiciary, but if anything specific is alleged against them, they are told about it beforehand.

Mr van der Linde explains: 'Applicants are not told who made any comments about them.

But if there are any adverse facts - such as rumours that a candidate has been overcharging - then these must be put to the applicant before the decision is made so that they are given a chance to respond.'

The government has made it clear that it is examining the QC system with fresh eyes.

If it finds that a special title does bring value to the public, then it will endeavour to construct a selection system that is fair, transparent, and a reward for genuine excellence.

Perhaps while it is doing so, it might consider widening the accolade to acknowledge more than just advocacy skills - the Law Society certainly thinks the net should be wider.

Mr Arnull says: 'We all know that there are partners in law firms, and indeed in-house lawyers, who are equally as expert in their fields as barristers.

But there is no accolade for them.

This would be a great opportunity to give some recognition to solicitors.