The rank of QC (Queen’s Counsel) has been awarded, for at least 400 years, to advocates (mostly barristers) who have been recognised, within their own profession, as having shown particular skill and expertise in the conduct of advocacy.
This rank, known as “silk” because QCs wear silk gowns, casts light on a number of features of the legal profession and the English legal system.
The reality is that senior barristers (and a few solicitors), predominantly white, male, public school and Oxford or Cambridge educated, are selected to become QCs (or KCs if the current occupier of Buckingham Palace is a male).
These are the chosen elite of the Bar, who line themselves up for judicial appointment. But the most important point about taking silk is that the barrister’s income can double overnight. This was expressly recognised in the Office of Fair Trading Report of 2001.
It is very difficult to find hard evidence of QC’s earnings. For example, Part 48 of the Civil Procedure Rules sets out a table of guidelines for counsel’s fees. It states that the table does not include any figures in respect of leading counsel (QC)’s fees, since such cases would self-evidently be exceptional.
Anecdotal evidence about QC fees includes a charge of £5000 for an hour’s telephone advice in an insurance-funded commercial dispute.
The QC appointment system, which is regarded with incredulity outside the United Kingdom, was based for centuries on an opaque series of informal soundings. In 2001 the Office of Fair Trading called for the abolition of the rank. It stated that it did not operate as a genuine quality accreditation scheme but rather as an informal quota which raised fees. The OFT went on to make the point that, even if it could be shown that the QC appointment system was transparent, objective and non-discriminatory, and operated as a genuine quality mark, it was of questionable value to consumers. The Malleson Report on QCs concluded that the selection process was riddled with indirect race and sex discrimination.
In November 2004 the Bar Council and the Law Society concluded an agreement on the reform of the QC system. The following points emerged:
• The new process served the public interest by offering a fair and transparent means of identifying excellence in advocacy in the higher courts.
• The title QC was an important reference mark for those who chose to purchase the highest quality advocacy services.
• The rank of QC was the recognition of excellence for advocacy in the higher courts.
• In April 2003 the award of Silk was suspended. The Lord Chancellor commented that if Silk disappeared, those receiving the award would be the last in an illustrious line of leading counsel recognised by the state as leaders of the profession.
• There was wide acceptance that abolition of the QC title would damage the international reputation of English law, would close a route to diversity and would weaken the administration of justice. It was not explained exactly how the abolition of the QC concept would “close a route to diversity” or affect the reputation of English law.
• Key features of the new system included an independent selection panel and letters patent from the Queen.
One expressed aim of the new selection system was to increase diversity. An application for silk now costs £2200 with a further £3500 fee for acceptance of the award if it is granted.
Another aim of the new procedure was to deal with “mischiefs about the tap on the shoulder and that it all happened in smoke-filled rooms”. One view of the new procedure is that the old, informal system has been replaced by a financial hurdle. On the other hand, it has been argued that people seeking appointment as QCs should be able to afford this, and that there was no evidence that people would be deterred from applying by the cost.
One effect of the new procedure for applying for the QC designation is that it has generated, as is common in the English legal system, another layer of profit-making. Consultancy services have been set up to coach applicants through the “long and daunting” application and interview process. One such consultancy offers detailed advice on how to fill in the application form, the selection of assessors and referees, coaching on the interview process and in-depth training and coaching on all competency areas.
The consultancy company offers, for a fee, a tailored programme to prepare and coach applicants for QC status. The programme includes advice on preparing the application form, the choice of referees, a template for referees, coaching on the interview process and training on all competency areas including integrity and diversity. The company’s publicity states that 100 per cent of applicants who took part in this scheme were successful with their applications. It includes the following:
• Do you want to have a successful QC interview, make more money and gain the respect of your peers and clients?
• We provide CONFIDENTIAL results-focused coaching.
• We will help you with your interview preparation.
• We will help you answer the very difficult questions on DIVERSITY. 40 per cent of applicants fail because they give the WRONG answers on DIVERSITY.
• The interview is a MINEFIELD.
One of the most disillusioning aspects of the radical edge of the legal profession is that the soundest, ablest, most courageous and sympathetic progressive lawyers all seem to accept the offer of Silk. Like Herbert Read (the anarchist who said yes to a knighthood), it is very hard to turn down.
The late John Mortimer QC repeatedly ridiculed the pomp, ceremony and fancy dress surrounding the formalities of becoming a QC. His Rumpole stories included the description of QCs as “Queer Customers” and referred to the wearing of silk stockings and suspender belts. It would be interesting to know why he was prepared to go through with the pantomime. But very few people can resist the lure of £200,000 a year.
Recent efforts to reform the QC appointments procedure have been hailed as moving the system away from a closed cabal populated by chaps who were at school, university and chambers together.
The main practical significance of the status of Queen’s Counsel was, and remains, the doubling of fees.
The rank of honorary QC – known as Queen’s Counsel honoris causa – is awarded to lawyers who have made a major contribution to the law of England and Wales outside practice in the courts. Traditionally, it has been awarded to distinguished legal academics and some lawyers in public service for achievements beyond their normal responsibilities. It is not a working rank. It cannot be used in practice as a lawyer and holders are strongly discouraged from exploiting the rank to attract business.
The Law Society Gazette commented that perhaps it was time to take another step towards modernity and consign Silk to the history books.
Peter Herbert, the Chair of the Society of Black Lawyers, is reported to have commented that the increased fees would make it harder for ethnic minority lawyers and women to apply because they often had lower earning capacity than their white or male comparators.