The fundamental structure for the appointment of Queen's Counsel should be retained although its operation needs improvements, a Bar Council working party has reported.
The working party undertook a consultation exercise that included researching the appointment systems in other jurisdictions. It examined, and rejected, alternatives to current practice whereby QCs are appointed by the Queen on the advice of the Lord Chancellor.
There was no sensible basis, the report says, for the substitution of a different minister, who would anyway have to undertake a similar consultation process to that currently followed by the Lord Chancellor. An independent commission would provide no material advantage, and selection of QCs by the Bar itself has few champions and would be expensive for the profession.
'We have therefore made a wide range of recommendations to improve the present system which I hope will be broadly supported by the profession,' Michael Kalisher QC, the working party's chairman, said. 'I hope that the report will be of great assistance to the Lord Chancellor in modernising the system and bringing it into line with the expectations of individual barristers and the public.'
The recommended improvements would, if implemented, answer some, at least, of the system's critics, dispensing with secrecy, limiting numbers and banning the practice of 'touting' for support.
The report suggests the introduction of formal published criteria for the grant of silk, to guide both those applying and those who are consulted. These criteria could include outstanding ability as an advocate, extensive experience and sound knowledge of law and practice in the relevant field, total professional integrity, 'mature judgement, balance and fear-
less independence' and an extensive practice.
Appointment, says the report, should be based solely on merit. Numbers should not be restricted by quotas or a perceived need for silks in particular areas of practice. More controversially, nor should there be positive discrimination, which would 'devalue both the system and also the status of those women and members of ethnic minorities who are granted silk on merit'.
Employed barristers, for example those working in commerce and industry or for government departments, should not be eligible for silk, which the report says should be a functioning rank. 'Rewards for excellence beyond the call of duty in the fields of administration and politics should be provided by other honours.' The grant of silk honoris causa to non-
practising barristers should be restricted to those, for example academics, who cannot usually be rewarded by the honours system. (A handful of non-practising lawyers are granted honorary, or non-functioning, silk each year. In some quarters they are known as artificial silks.)
Another suggestion for improving the system is the charging of a 'realistic' fee - pounds 200 or more - for applying for silk. This, together with the published criteria, is likely to have an impact on the number of applications, the report says.
In 1985 there were 204 applications, with 34 awarded; this year 77 were awarded out of 539 applications. The increase in numbers applying makes it
'increasingly difficult, expensive and time-consuming
each year to give every application the careful and separate consideration it requires', says the report. In addition, it recommends limiting the number of times each individual may apply.
All forms of 'lobbying and touting' should cease forthwith, says the working party. The practice of soliciting support for applications 'contributes nothing to the system and is a burden and an embarrassment to the judges and barristers whose support is solicited.
'Lobbying for support, insofar as it happens, corrodes confidence within and without the profession in the fairness and impartiality of the system.'
Another important recommendation concerns confidentiality. There is no justification, the report says, for any part of the selection process being secret. It acknowledges, however, that those consulted on the merits of individuals may be inhibited in their comments without a promise of confidentiality, so the compromise suggested is that applicants are entitled to be told in general terms what has been said about them and the impact this has had on their applications.
Whether or not the working party's recommendations are accepted is in the hands of the Lord Chancellor. 'Our aim has been to persuade him to accept our proposals,' Mr Kalisher said.
'I know that he and his officials are looking at the report. I hope this will result in discussions and the adoption of our recommendations. We shall see.'
The report has received a mixed welcome, not least from female barristers. The chairwoman of their association, Susan Ward, said that the group was disappointed. The report would make a bad system worse, she said, and women would continue to be disadvantaged.
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