Is silk back in fashion?

A year after the Government suspended the appointment of QCs, lawyers are still left wondering whether their most senior rank will survive.
Click to follow
The Independent Online

Maundy Thursday is traditionally a time of great rejoicing for the brightest and most ambitious members of the Bar. But last week the day passed without event. After years of preparing to take the profession's highest accolade, this year's crop of aspiring silks have waited in vain for a letter from the Lord Chancellor personally inviting them to join the world's most exclusive club for lawyers.

For those who have just missed out, and plenty think they have, disappointment has turned to bitterness as they confront the realisation that they may have been cheated out of a career. The source of their upset can be traced back to Derry Irvine, who last year, in one of his last acts as Lord Chancellor, ordered the suspension of this year's silk round. This was widely interpreted as the death knell for a system of patronage that has been criticised for being arbitrary, secretive and of questionable value.

But now it seems all may not be lost after all. One year on from Lord Irvine's silk cull there is still no final decision on whether the rank of QC is to be consigned to the constitutional dustbin, along with the law lords and the post of Lord Chancellor. In the Temple, the heart of legal London, rumour mills are working overtime in anticipation of a climb-down by the Government.

As recently as last month, the Bar's new chairman felt confident enough to write in Counsel, the profession's in-house magazine, that he hoped the Bar had won the silk debate. Hinting at what might have been surrendered as part of a negotiated settlement, he went on to say: "Even though the state should grant the rank, I am happy to see politicians out of the selection process, particularly given the constitutional changes afoot. We need to be very careful to preserve merit, but ensure diversity."

The smart money is on the retention of a silk rank, but with significant reforms of the system for appointing candidates and new powers to remove incumbents. What is not clear is whether the title will be Queen's Counsel or Senior Counsel. People's Counsel, in keeping with the current trend of separating the monarchy from the courts, has been rejected.

Although the Lord Chancellor, Lord Falconer of Thoroton, has had time to digest the responses prompted by his department's consultation paper on the future of silk, there is no indication that he is in any rush to end the uncertainty. A spokesman for his department refused even to accept that there had been any delay in making the announcement. "We didn't set a date, so how can there be a delay?" he said. Yet six weeks ago key figures at the Bar and the Law Society were polishing their position statements in readiness for a final decision.

Conspiracy theorists might argue that the reason for this "time adjustment" is that Lord Falconer's plan to tear up the silk system has been blown off course by strong lobbying from the Bar. Others believe that he was never convinced of the merits of abolition. After all, it was a reform he had inherited from Lord Irvine. Instead, he may have seen it as a useful bargaining tool in his negotiations with the Bar over legal aid fees but did not intend to carry it through.

More pragmatic theorists might argue that the Lord Chancellor already has his hands full with more important constitutional work. In terms of Lord Falconer's overall reform programme, the issue of QCs has been a much lower priority. Staff at the office of the Department for Constitutional Affairs are currently overworked dealing with plans to establish a Supreme Court, abolish the post of Lord Chancellor and sort out the mess that has become the reform of the House of Lords.

There are real practical problems as well. How would it be possible to manage a two-tier system for both the already promoted QCs and the ever-growing group of disenchanted yet highly experienced advocates who have missed out on winning silk? Guy Mansfield QC, vice chairman of the Bar, says that he hopes they won't have to wait long for a final decision. "We hope we've won the argument because we believe it is in the public interest to keep a rank that recognises expertise and quality."

Some support has come from unexpected quarters. It was thought that black and Asian barristers, who have traditionally been under-represented among the ranks of silk, would welcome the move towards abolition. Not so - a draft paper drawn up by the South Eastern Circuit ethnic minority committee warns ministers of ignoring the impact of scrapping silk. They accept that in the past ethnic minority lawyers have been disenchanted with the system, and that there is a "deeply held perception that the system too often fails to include them at all levels". But the paper also says that in recent years, as a result of a campaign by Lord Irvine to encourage more black applicants for judicial posts and silk, confidence in the system has risen.

Courtenay Griffiths QC argues: "The last Lord Chancellor told us: 'Don't be shy, apply'. As a result, a cohort of ethnic minority barristers are reaching the stage when they could apply to become silks or judges. And suddenly the Government is not just suggesting moving the goalposts, it wants to remove them altogether." Griffiths, who took silk in 1998, said: "The award of silk means a great deal. For me it meant I was finally admitted to this club and all that came with it. And in my case, it meant that the Lord Chancellor finally had a black silk with whom to consult on other applicants." He added that it was the ultimate recognition for his family, brought to Britain in the 1950s by his father, a Jamaican carpenter who set up business in Coventry.

Such a resounding call to think again will have been difficult to resist. But for those barristers whose careers are in limbo as they wait to for the word on the future of QCs, the present position is unacceptable.

Last week The Lawyer magazine produced a list of 50 (youngish) barristers who it believed would have taken silk this time round. As they posed under the bandstand in Lincoln's Inn Fields, it was hard not to imagine their frustration as they pondered their futures. Perhaps some were putting their legal minds to work on the problem. It wouldn't have taken long to have established grounds for a compensation claim against the Government for depriving them of lucrative careers as leading advocates.