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16 April 2001

It looks posh, but what’s the point?

Overpaid and underworked, fed on heavy dinners and dressed in silly clothes, does the QC have a role

By Richard Colbey

A few days ago, several hundred seemingly successful, middle-aged professional people will have received letters telling them, in effect, that they have been deemed failures. They represent the vast majority of participants in the annual ritual of “applying for silk”, through which many well-established barristers and a very few solicitors put themselves. Each year, around 500 apply to the Lord Chancellor for the coveted letters “QC”, but less than 15 per cent succeed.

The system of silk was condemned as anti-competitive by the Office of Fair Trading last month, in its report on restrictive practices in the professions. “Queen’s Counsel” is an official label, handed out arbitrarily, which enables those who have it to charge more for their services. Almost all High Court judges are appointed from among their number.

In theory, you can apply for a silk ten years after qualification. Last year’s least experienced appointee had been around for 14 years, but more than 20 years is the norm. Obtaining the distinction before the age of 40 – as did the Lord Chancellor, Derry Irvine – is regarded as a mark of brilliance.

The only advantage in retaining the distinction between silks and junior barristers (as non-QCs are known, regardless of age and eminence) is that it saves solicitors using their own judgement when deciding to whom they should send their most important work. The title “Queen’s Counsel”, despite the lack of any connection with personal employment by Her Majesty, is one of the many anachronisms that surround the position, along with wearing odd clothes, the right to sit on the front row in the High Court and the Maundy Thursday date of appointment.

Any reforms to the role of silk will be opposed by the Bar Council, which has already threatened the Office of Fair Trading with all-out war should it continue to take on the profession.

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The de facto monopoly given to silks on the most prestigious work is just one of the many invidious features of the present system. The subjective selection system is a cause for greater concern. The least contentious factor taken into account is the applicants’ earnings, which have to be declared, and statistics about those earnings are now published by the Lord Chancellor’s Department. Last year, the unsuccessful applicants – 422 barristers and six solicitors – averaged gross earnings of more than £165,000, with £213,000 the norm for the 78 – all barristers – who succeeded.

Income is not the decisive factor in the appointment of the QC. The most highly paid applicant for silk, with a salary of £634,000, was rejected, while another who earned “only” £77,000 was successful. The other factors taken into consideration are essentially the views of judges and existing silks – which hardly makes for a fair system. The legal establishment is trying to address this. Already, the phrase “secret soundings” has been dropped; and the Lord Chancellor’s Department officially insists that it is no longer possible for one person, however eminent, to make or break a candidate’s chances (although anecdotal evidence at the Bar suggests otherwise).

Until recently, the selection process might have suffered from bias against women or non-white candidates, but the Lord Chancellor’s Department devotes so many of its resources to arguing its political correctness that this is possibly no longer the case. Indeed, women, who represent about 10 per cent of applicants, do marginally better than men; and the 5 per cent from ethnic minorities have roughly the same chance as their white counterparts.

A politically radical, anti-establishment reputation is now no great handicap. Overt leftwingers – the criminal lawyers Michael Mansfield and Helena Kennedy, and the housing specialist Andrew Arden – were appointed under the Conservative government. Stephen Sedley, a socialist who put “changing the world” among his hobbies in Who’s Who, found his politics no bar to becoming a silk, nor indeed a Court of Appeal judge.

None the less, there is a perception among ambitious barristers approaching middle age that keeping one’s nose clean might not be a bad thing. Inevitably, if preferment depends on the views of judges, antagonising those judges might not be seen as a career-enhancing move.

Ironically, despite the number who covet it, the award of silk often proves far from the honey pot it is popularly perceived to be. The hourly rate charged for doing privately paid work might typically jump from £150 to £300 – but this is still less than that charged by an equally experienced solicitor working for a City firm. Moreover, for most, the volume of work will halve (at least in the short term) so that, on a financial level, the silk may be no better off than before, but will have more free time.

This situation results in the waste of the potential productivity of some seriously bright people, who end up being merely a tremendous fillip for a Bar Council that likes to fill its endless committees with well-respected names: currently, 13 silks are on its equal opportunities committee. Many QCs soon become circuit judges, a role that is regarded as less prestigious than practising as a silk.

There are no reliable statistics for silks’ incomes. “Surveys” in legal magazines, rehashed with relish in the mainstream press, usually represent nothing more than moderately educated guesses, tending towards headline-grabbing overestimates of the number of £1m-a-year barristers. In reality, it is unlikely that anyone consistently grosses that much, and probably around six do in any given year.

The silk brings no benefits to the public. For those lawyers who seek it, it can prove an invidious distraction; and for many of those who attain it, it proves to be, prestige aside, a poisoned chalice. As for those who fail to attain it – any junior barrister over 50 will be regarded by many as a failure for not being a silk – the process appears even more malevolent. Yet the government is unlikely to insist on ending this divisive ritual: direct confrontation with the legal profession is too traumatic if there is no real benefit to be attained, which is why wigs and gowns and the compulsory eating of dinners have survived. However, the government could make the position of silk virtually unviable, by decreeing that publicly funded work, legal aid, prosecuting and representing government departments will be paid at the same rate regardless of what letters the barrister has after his name.

Richard Colbey is a barrister. He hasn’t applied for silk yet, but would like to one day