RESPONSE TO:-

CONSTITUTIONAL REFORM: THE FUTURE OF QUEEN’S COUNSEL

This is the Response of the London Solicitors Litigation Association (LSLA) to the Government’s Consultation Paper of July 2003 on the future of Queen’s Counsel. We represent litigation solicitors throughout Greater London. We have approximately nine hundred members who come from the very largest firms in the City, to the very smallest whose practices lie outside the centre. Our Members operate in a variety of fields encompassing commercial and corporate litigation of all kinds, as well as in areas such as financial services, property litigation, personal injury, employment law and Judicial Review. The question of selection of QCs, as well as the related topic of the appointment of the Judiciary are of much importance to our Members.

In summary our views are as follows:-

1. Notwithstanding the changes that have been made to the QC System since its inception five hundred or so years ago, the regime has failed to keep pace with developments in the market for legal services in this country (and particularly in London where we operate) and with the attitudes of society generally. In short the system cannot continue in its current form.

2. Although the value of the system must ultimately be judged by the extent to which it serves the needs of the general public, the reality is that this is heavily dependent upon the manner in which it assists the professional users of the system. For all practical purposes, these professional “users”, are likely to be solicitors, although they will include others who currently have – and make use of – rights of direct access to Barristers. Indeed, the Judges (who may also be described as professional “users” in this context) have themselves become increasingly specialist over the years, and particularly so during the course of the last five to ten years.

3. It is increasingly rare for litigation solicitors to practice in fields of litigation in which they do not have considerable knowledge and “day-to-day” experience and expertise. As a result, they may be expected to have significant familiarity with professional practitioners in the field in which they operate and/or will have ready access to those who do., They are also able to consult the increasing number of Practitioner Guides which now channel and report some of those views. Quite whether those practitioners are assisted in their selection of Counsel by the title of “QC”, as they might have been say five to ten years ago, is now open to considerable doubt.

4. In some fields, such as employment, the same point in relation to specialisation may be said of the Judges who, arguably, because of their specific expertise and experience in the area of law with which they will be concerned, may be rather less influenced by the title of the advocate appearing before them (if they ever were), rather than by the integrity of the submissions being made. (although that is more a question for the Judges than our Members).

5. The involvement of the State in the selection of QC’s is no longer justified.

6. Arguably there remains some merit in retaining a “kite mark” standard for those with particular expertise in the law. This may or may not require honed skills in the field of Advocacy, but could also involve particular skills in other specialist areas of the law. In this respect, care would need to be taken to control the numbers involved. If, at present, approximately 10% of the Bar have taken Silk, it might devalue the currency of any future kite mark standard if the qualification was awarded in too great a number. The standard could become meaningless if that were to happen.

7. If a “kite mark” standard is justified, it should be for the relevant professional bodies to develop their own system of accreditation. Practically that will mean the Law Society for Solicitors and the Bar Council for Barristers. They should work together jointly to develop the kite mark. There should be no distinction between the professions in this respect. There may be some support for having external (non-legal and independent) input into the selection process at that stage. Nonetheless, those who are in the best position to judge the selection of appropriate candidates will principally be those who practice in the relevant fields of law. If the professional bodies themselves cannot be relied upon to select wholly on the basis of merit, regardless of colour, race, nationality, creed, sex, full time/part time criteria and other such factors, it may be appropriate to import external involvement. That may, in any event, have benefits in terms of public perception and transparency.

8. There is a clear distinction between the appointment of Silk and the appointment of the Judiciary. In respect of the latter there is a much more persuasive argument for the involvement of independent persons to monitor the system and ensure its transparency. That the seniority of a candidate has not been recognised with the appropriate “kite mark” by the relevant professional body, should not operate as a bar to the attainment of judicial office. If in reality that is difficult to achieve, there is an argument for some external input into the selection process for the kite mark standard (although the mechanism for determining who such “external” persons would be, not to say who would be responsible for their appointment - if it is not to be the State or the relevant legal profession - may of itself raise difficulties).

9. So far as Court proceedings are concerned, there should no longer be any distinction between advocates, in terms of the branch of the legal profession from which they come and whether or not they have achieved a particular “kite mark”, especially if it continues to be State sponsored.

10. On balance, we believe it would be unnecessarily divisive to abolish the rank of “QC” for those who have now attained it. A new rank may take its place, sponsored by the professional bodies concerned. Given that there will be no differentiation in terms of location within the precincts of the Court and in Court dress, a “level playing field” should develop in a reasonably acceptable time (probably, we anticipate, within five years and almost certainly by ten years). This may not be ideal but, on balance, we believe it is a more favourable course than outright and immediate abolition.

Turning now to the individual questions raised in the Consultation Paper, we reply as follows:-

11. Question 1

Do you consider it appropriate for the State to be awarding a professional rank in a profession? What are your reasons?

We do not consider it appropriate for the State to continue to determine who should attain the “kite mark” standard for the two branches of the legal profession, many of whom will not (because of the field of law in which they practice, or because of their work patterns) regularly appear before the Courts and Tribunals. Given that in many fields of law decisions of the Government are open to challenge, it should not be for the State to select those senior members of the profession who may therefore become more likely to receive instructions to mount such challenges. We also doubt in reality the Court will feel able to rely less upon Counsel appearing before it because he or she may no longer have the benefit of the title “QC” and with it the background of the involvement of the State in its initial award (rather than no “kite mark” or one that Is awarded by The Bar or The Law Society). We accept there may be an issue in relation to the appointment of members of the judiciary, given the preponderance in its higher echelons of those having attained the rank of Silk. However, we do not believe this to be an argument for retaining state involvement in the Silk process, although it is an issue that needs to be addressed in the judicial appointments system itself.

Question 2

Do you consider that the public interest would suffer if the Government were not directly responsible for the selection process for any quality mark scheme? What are you reasons?

We do not believe it is in the public interest to retain State involvement in the Silk appointment system. Rather, we think the public interest will be better served if the State was not so involved. The professions concerned can develop their own “kite mark” standard and the practitioners within the relevant fields can use their expertise to appoint appropriate senior advocates in each case.

Question 3

If you do not consider that the state should continue to be involved in the award of QC, can a change to the current constitutional arrangements which prevent The Queen from acting other than on the advice of ministers be justified? What form should that change take (including adequate measures for accountability to Parliament)? What are your reasons?

As we are not suggesting the candidates attaining the appropriate “kite mark” standard be appointed by the Queen, the question will not arise.

Question 4

Can an arrangement under which the relevant minister makes recommendations, having been guided by another body, be justified? To what extent should the minister be bound to accept the advice of that body? What form should that arrangement take (including adequate measures for accountability to Parliament)? What are your reasons?

We do not believe the relevant minister should continue to be involved, in making “recommendations”.

Question 5

If you support the option in Question 4, as the Government will be establishing a judicial appointments commission, should this be the advisory body? What are your reasons?

Not applicable.

Question 6

If it were to be decided that the rank of QC should be discontinued, do you consider that the Government should have an ongoing role in overseeing the framework of any new quality mark scheme that the Bar Council and/or the Law Society (or any other body) might decide to introduce? What are you reasons?

We have less difficulty in the Government having some involvement in the setting of standards and criteria by which the professional body’s will assist candidates for the “kite mark” standard. This is distinct from the selection of the individual candidates concerned. In any event the Government already monitors the setting of certain standards in areas in which they are an important purchaser of legal services. It may also provide assurance to the public that non-discriminatory and fair standards are being set and applied.

Question 7

Do you consider that the rank of QC in its current form benefits the public? What are the reasons for your view?

In days gone by the rank of “QC” may well have provided some assurance to members of the public. This was particularly so when instructing solicitors may not necessarily have been specialists or experts in the particular areas of law concerned. However, the market for legal services and the attitude of the public have changed. Solicitors, particularly in London where our Members practice, are increasingly specialist these days and will rely less and less upon the rank of “QC” to determine whether they feel a particular Barrister has the right level of expertise, judgment and gravitas to take on a particular Brief. We do not believe solicitors in such circumstances should be influenced by whether a particular specialist advocate may sit in a Court room, how he/she will dress, and how the rank will assist in impressing/matching the other side.

Question 8

In the light of the arguments set out in this section, do you think the current system should be abolished or changed? What are the reasons for your view?

For reasons already given, we believe the current system should be substantially changed. The State should no longer be involved in the award of the rank of QC. There is a case for having a form of “kite mark” standard, but the preferred bodies themselves could be (jointly) given responsibility for it, subject to criteria/standards reviewed by the State.

Question 9

Do you consider that the legal services market is sufficiently sophisticated to allow solicitors to chose appropriate Barristers without the need of the QC mark? What are you reasons?

For reasons already given, we do believe solicitors are able to choose appropriate Barristers without needing a QC rank to refer to.

Question 10

If the rank should continue, should it also continue to enjoy its traditional formal privileges of dress, position and precedence?

For reasons already given, we do not believe there should be any distinction in terms of dress, position and precedence.

Question 11

If you consider that the QC rank should be abolished, do you consider that it should be replaced by another form of quality mark (whether it be granted by the state, the professions, an independent body or the proposed judicial appointments commission)? What are your reasons?

We can see it may be of some assistance to solicitors (and therefore to members of the public) to have a “kite mark” standard for members of the legal profession. So as to assure the public that selection will be fair and non-discriminatory in any way, there is an argument for importing external influence from outside the legal profession in the process. It may be that the establishment of an “independent body” or the involvement of the “judicial appointments commission” may be unnecessarily cumbersome in that respect, and that independent persons may more conveniently be drafted into the selection panels of the professions themselves. The standard applied to both solicitors and barristers should be the same, and the standard need not concentrate on advocacy, but may encompass other skills/areas of practice. The standard should be developed by both the Law Society and the Bar Council jointly.

Question 12

What do you consider would be the impact (positive or negative) on customers of legal services if the rank of QC were to be removed? Do you consider there would be any increase or decrease in legal costs? What are you reasons?

We believe the public would benefit from the changes we have proposed to the QC system. There may in fact be an overall decrease in legal costs, although ultimately the market will decide the level of a particular practitioner’s fees, as should be the case. Certainly it will stop those who for whatever reason no longer merit the “kite mark” standard being able to charge fees which are not commensurate with their particular level simply because of the title under which they can practice. In truth, however, given the level of specialisation within the legal profession these days, we suspect there may be relatively few examples of this situation occurring.

Question 13

What do you consider would be the impact on advocates’ fees (QCs and juniors) if the rank were to be removed?

See answer to question 12.

Question 14

For those clients who qualify to use the Bar Council’s current Direct Access scheme, what would be the impact (if any) of the removal of the QC rank?

As solicitors we do not make use of the Direct Access scheme.

Question 15

What changes or other kind of scheme might better help non-specialist solicitors or non-lawyers to choose the right advocate for their case?

As we have said we believe there are fewer “non-specialist” solicitors practicing in the field of litigation, particularly in London, than was the case some years ago. We believe a “kite mark” standard developed by the professional bodies themselves, may assist, however, and in any event the fact that the involvement of the state would have ceased to be a part of the system of selection, should not be a reason for the guidance to be used less by “non-specialist” solicitors or non-lawyers. It is also always open to non-specialist solicitors and, indeed, non-lawyers, to make enquiry of those with more experience in the particular field with which they are having to deal.

Question 16

If a different approach had to be taken in matters where QCs are currently regularly used, what ways would you suggest for identifying practitioners with a suitable level of expertise or case-management skills, and what sources of information would you use?

If there was to be developed the professions’ “kite mark” standard that could be referred to, as well as the lawyers own experience and expertise (and that of the colleagues whom he or she could consult). There are also the various publications which list Counsel in each particular field, as well as the information provided by the Chambers concerned. In any event, part of the job of any litigation solicitor is to know how best to select appropriate specialist advocates for any particular case. For that purpose they should not be unduly swayed by titles that may have been awarded in the past. They have always been no more than a guide to a particular advocate’s expertise. The level of guidance could vary in any particular case, and of course, could be considerably out of date depending upon when the particular specialist had taken Silk.

Question 17

What other implications do you consider there would be, positive or negative, including on price, for the legal services market if the rank of QC were to be removed?

It would undoubtedly take some time for the market to stabilise. An analogy may be drawn in terms of Universities and Polytechnics. Although Polytechnics changed their names to “Universities”, for some years thereafter employers may have referred to the name of a particular University and then sought to remind themselves that the relevant institution was “formerly known” as a particular Polytechnic. The same may happen for senior members of the profession, although with time the arbiter would come to be ability in the market place as judged by the Court of Market Opinion, as well as, in this case, the purchaser of their services, namely solicitors and others who buy in their services through Direct Access. Of course, being accredited by a professional body as being, for example, “Senior Counsel” may count for something in terms of fees, but so would various other aspects of a particular professional’s CV such as involvement in outside committees, particular work experience and involvement in Government bodies.

Question 18

What measures are needed to deal with circumstances where the use of QC has been stipulated as a contractual condition?

Usual contractual principles will apply in such an event, and will to a substantial extent depend upon the particular clause involved. Moving forward, there may, in any event, be a new “rank” developed if the professional bodies are allowed to point to their own senior members.

Question 19

If the Government decided that it was no longer appropriate for the state to provide a guide to the quality of advocacy services through appointment by The Queen to a rank, which of the options given for transitional arrangements, (if any) should be preferred, and why?

On balance, we do not believe it would be fair to those who have worked extremely hard in the past to attain the rank of QC, for that title to be taken away from them for reasons which have nothing to do with their own individual performance. At the same time we also believe it would provide an unfair advantage to existing QC’s to be allowed to maintain that title whereas those of almost the same level of seniority and indeed ability, could not. We believe that if the professions are to be allowed to develop their own “kite mark”, the introduction of that system may be established at the same time as the abolition of the QC designation. In that sense the new “senior Counsel” (or whatever name will be ascribed to the new rank) will be able to compete with the “old” QC. We accept that in a sense that is not entirely satisfactory given that the “QC” designation carries with it in some eyes the semblance of state patronage, but in time this factor will work its way through the system. Indeed, we suspect the pace with which the legal profession is moving these days, no more than five years may be required in order for this to take effect, and that almost certainly by ten years many QCs will have moved on within the profession or retired.

Question 20

If you do not support these options, what other approach would you suggest and why?

See answer to question 19 above.

Question 21

Should the quality mark be granted only after, for example, examination or interview? Why?

Realistically we rather doubt “examination” is going to be an appropriate means of selection. We think it is more practical for the application to take the form of a searching series of questions, the submission of opinions/references from within the profession and beyond, as well as an interview. In terms of ensuring fairness and transparency, the involvement of non-lawyers, particularly in the interview process may be beneficial.

Question 22

Should it include regular re-appraisal or re-accreditation? How might this be achieved?

The removal of the particular senior “rank” is clearly a drastic step for the practitioner concerned. One suspects that in the current market, with the increasing specialisation of all practitioners, there is less of a risk of a practitioner being misled by a title that has become “historic” and no longer applicable. That having been said, there should be a facility for members of the public/profession to register complaint to the appropriate professional body and, after careful investigation, that body should have power to remove the “title” in circumstances where that is merited.

Question 23

Should it include appeals and complaints mechanism? How would you envisage them working?

We do believe a “complaints” system would be justified. An “appeals” procedure needs careful consideration. One can envisage a situation in which the majority of candidates who are unsuccessful, routinely appeal. The system may rapidly become overly cumbersome and may consequently not survive. Of course, at the same time, it is necessary to ensure the procedure is at all times as open to scrutiny and transparent as possible so that all applicants know why they may have not obtained the rank they sought and can be satisfied they had a fair crack of the whip wholly uninfluenced by factors such as their colour, creed, nationality, sex or their work pattern arrangements.

Question 24

Do you think some new form of quality mark is desirable? By whom should it be run, and how? What would be the impact on the market for legal services?

We believe there may be some benefit in a form of “quality mark” being developed by the professional bodies themselves. The mark can provide guidance to practitioners and may constitute a note of recognition for senior practitioners and a sign of promotion which may encourage ambition and achievement within the profession. The standard ought to be developed by the professional bodies jointly. There should be no distinction between the two branches of the profession in that respect.

Question 25

If some form of quality mark is necessary, should it continue to focus primarily on advocacy?

It is practically impossible for the “kite mark” to focus primarily on advocacy in a market for legal services in which many practitioners simply do not find themselves before the Courts or Tribunals on a regular basis. As such the ability to be a good “advocate” is not what is important for the purchaser of legal services, and therefore in the public interest.

Question 26

If you consider that any criteria should reflect a broader range of skills and experience, how do you think this might be achieved? What other skills do you consider should be recognised and tested?

Self evidently it would be for the professional bodies themselves to develop the criteria (which can be monitored by the Government for reasons aforestated). These criteria will vary from field to field. In some areas of the law advocacy will play little or no part, whereas in others proficiency in the art of advocacy will be highly determinative. The numbers involved will also need to be considered. At present, approximately 10% of barristers have taken Silk. Clearly, for the standard to mean anything, not everyone can expect to be in a position to or be able to satisfy it.

Question 27

If you consider that the criteria should focus on advocacy, should there also be a parallel mark for solicitors and barristers who undertake the many other types of legal work (including the suing of proceedings, the preparation of instructions for advocates, and many matters which do not usually involve the Court, such as conveyancing? What differences would you envisage there being between the two schemes?

For reasons aforesaid, we do not believe the criteria should focus on advocacy in any event.

In conclusion (please refer to summary, but in brief):

1. If the QC system had not been invented, would it be brought into existence now? We think not.

2. For reasons aforesaid we believe the time has come to end State involvement in the process.

3. There may be a case for having a “kite mark” standard, but it should be developed by the professional bodies themselves (the Law Society and the Bar Council) jointly. There should be no distinction between the two branches of the profession in this respect.

4. If the QC designation is to be abolished, current QCs should not be stripped of their title.

5. The involvement of the State in the selection of QC’s is no longer justified.

9. So far as Court proceedings are concerned, there should no longer be any distinction between advocates, in terms of the branch of the legal profession from which they come and whether or not they have achieved a particular “kite mark”, especially if it continues to be State sponsored.

11. Question 1

1. If the QC system had not been invented, would it be brought into existence now? We think not.

2. For reasons aforesaid we believe the time has come to end State involvement in the process.

3. There may be a case for having a “kite mark” standard, but it should be developed by the professional bodies themselves (the Law Society and the Bar Council) jointly. There should be no distinction between the two branches of the profession in this respect.

4. If the QC designation is to be abolished, current QCs should not be stripped of their title.

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