Copies of the individual responses to this consultation are also available.
This document is the post-consultation report for the consultation paper, Constitutional reform: the future of Queen's Counsel.
It will cover:
the background to the report;
a summary of the responses to the report;
a detailed response to the specific questions raised in the report; and
the next steps following this consultation.
Further copies of this report can be obtained by contacting Queen's Counsel Branch at the address below:
Queen's Counsel Branch
Department for Constitutional Affairs
2nd Floor
Selborne House
London
SW1E 6QW
Telephone: 020 7210 1449
email: queenscounsel judicialgroup
This paper forms part of a series of summaries on the responses to the constitutional reform consultations. The others cover:
On 14 July Lord Falconer, Secretary of State for Constitutional Affairs and Lord Chancellor, published a consultation paper, Constitutional reform: the future of Queen's Counsel, seeking views on the current role of Queen's Counsel (QCs or 'Silks'), the advantages and problems, and possible ways forward. The consultation paper covered:
arguments for and against the continuation of the QC rank in its current form;
arguments for and against continuing the current State role in awarding the QC rank;
the possible impact on customers and on the market for legal services of removing the rank;
the implications for existing QCs of possible ways to remove the rank; and
possible changes to the award criteria and procedures if the QC rank, or some other form of quality mark, were considered necessary or desirable.
The consultation period closed on 7 November 2003 and this report summarises the responses. A list of respondents is at Annex A.
A total of 376 responses to the consultation paper were received. Of these, 348 were not confidential and broke down as follows:
A further 28 respondents, including some lawyers and firms, asked that their names or the whole of their responses be kept confidential. Several respondents included letters and emails from other people or organisations, but these have not been counted as separate responses.
All the responses have been analysed and a summary for each question forms the main body of this report. We are grateful to everyone who responded. The majority of respondents offered views on all the issues in the consultation paper, while others focused on particular questions or issues. A little under half of respondents used the questionnaire provided in the consultation paper or on-line, while some preferred to send written answers only or provided a combination of both. A small number of respondents sent combined responses covering all the constitutional reform consultation papers. A few respondents included in their responses comments that were not directly relevant to the consultation paper. However, all relevant comments have been included in the analysis below.
Many of the questions in the consultation paper sought yes/no answers, or views about alternatives or options. The analysis includes, where possible, figures for the percentages of respondents who fell into the appropriate categories. However, care should be taken when interpreting the results, since the number of respondents was relatively small in statistical terms. Percentages may not add up to 100% because of rounding or because the balance of respondents did not express a firm opinion either way.
Do you consider it appropriate for the state to be awarding a professional rank in a profession? What are your reasons?
Of the 246 respondents who answered this question, 63% considered that Government involvement was appropriate. The majority of these considered it appropriate for the state to award a promotional rank because the legal profession was seen as essentially a public profession, rather than a private one. The Criminal Bar Association said: "There is no doubt about the public nature of much of the work done by silks. Unlike other professions, barristers have an overriding duty, above the interests of their clients, to the court to uphold the principles of justice. This public duty to the court justifies the state being involved in the appointment of QCs and in defining the criteria required for elevation to perform what is often a quasi-judicial role".
Other respondents expressed the view that it is appropriate for the Government to award a promotional rank in the legal profession because the state has an interest in the efficient administration of justice and the smooth running of the courts, which the rank helps to achieve. The Bar Council said: "If the profession of advocacy has, as we have argued, a public function, the quality of the leaders among advocates is a public matter that deserves public recognition. The advocate's role is so linked with the administration of justice that the State must have an interest in ensuring that the highest standards of advocacy are maintained. The award of the rank of QC is a public demonstration of such an interest".
Some respondents considered it appropriate for the state to be involved, on the understanding that the state is defined as The Queen rather than the Executive, and that this understanding applies to the current situation. The Scottish Faculty of Advocates said that: "if what is meant by that expression is the state of the United Kingdom and Northern Ireland in its fullest sense, including The Crown, the Sovereign, Parliament, including the Government and its ministers, and the judiciary, then the Faculty agrees that the rank of senior counsel should be awarded by the state. If, on the other hand, the expression is intended to relate only to the Sovereign acting upon the recommendation of her ministers (in Scotland, the Scottish ministers), then the Faculty would not consider it to be appropriate for ministers of the Government or executive to be responsible effectively for the awarding of a promotional rank in an independent legal profession".
Other respondents expressed the view that the Government should not award a promotional rank in the legal profession because the Government is a major consumer of legal services. The Office of Fair Trading (OFT) considered that: "Government's direct involvement in awarding a mark that functions in a market where the state is active as a purchaser raises important issues of independence". While the Institute of Legal Executives said that among: "positive reasons for discontinuing, the fact that the Government are the buyers of legal services and that no other comparable professional awards are made by the Government, are the most compelling".
Some respondents considered that the Government awarding a promotional rank in the legal profession was inappropriate because an important role of the legal profession is to act as a check on Government and to hold Government to account for its decisions. Many of these respondents expressed the view that this presented a clear conflict of interest. The London Solicitors' Legal Association said: "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". Another respondent expressed the view that: "lawyers are there, at least in part, to help hold the Executive to account. It is thus most inappropriate for the Executive to decide which of these lawyers receive high professional rank."
Twenty nine per cent of the 264 respondents considered that it was inappropriate for the state to be awarding a promotional rank in a profession on the grounds that the state does not do so in any other independent profession. The Law Society said that: "the designation of Queen's Counsel is essentially a public honour accorded to a private group. There is no logical reason why such an honour, or its equivalent, might not be given to outstanding doctors, dentists or accountants. The rank has long ceased to have any relationship with being Counsel for The Queen. The designation is a mark of patronage that is inappropriate in a modern age". That last sentence was echoed by the Commissioners for Judicial Appointments, who said (in their 2003 Annual Report, to which their response referred): "We see every reason of principle why the state should not be in a position to exercise patronage over the careers of senior advocates, even if there is no reason to believe that that power of patronage has in fact been abused in recent years".
There were two related views. Some respondents said that the state's role in awarding Silk was inconsistent with the independence of the legal professions. Others believed it was anomalous. The Commissioners for Judicial Appointments said: "We can see no reason why this decision alone should remain in the hands of the state when other functions which are of at least equal importance, including admission, rights of audience and discipline are in the hands of the professions".
A small number of respondents considered that it was inappropriate for the Government to confer a promotional rank in the legal profession because the original reasons for this practice have since disappeared. The OFT considered that: "the historical origins of the title no longer correspond to its function". Other respondents simply considered the practice to be "outmoded" or "anachronistic".
A very small number of respondents considered that the state awarding a professional mark was appropriate given that much of the work performed by the legal profession is publicly funded.
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 your reasons?
Of the 171 respondents who answered this question, 37% considered that the public interest would suffer if the Government were not directly responsible for the selection process, while 63% did not.
Most respondents considered that the absence of direct Government involvement would not harm the public interest, citing examples of other professions awarding their own quality marks, particularly the medical profession. Many of these expressed the view that the judiciary or the Bar itself should be responsible for the selection process for a quality mark scheme, noting the importance of the profession's independence from political connections. The Law Society of Scotland drew attention to the different role of the Lord President in the selection process in Scotland, and considered that: "a benchmark of quality independently assessed by the Lord President is both in the public interest and in the interest of the legal profession".
Some respondents expressed the view that any quality mark scheme is unnecessary, and its usefulness to both customers and instructing solicitors often exaggerated. A local Law Society considered that: "those that are likely to need the services of a barrister (whether solicitors or not) are likely to know who they wish to appoint".
Some respondents questioned whether the Government has been directly responsible in the selection process, and expressed the view that the Lord Chancellor advised the Crown in his capacity as head of the judiciary, not as a Government Minister, and discharged his duties without reference to political considerations.
A few of the respondents considered that the Government need not exercise direct responsibility over the selection process, but should continue to be indirectly involved. These respondents envisaged an independent body undertaking the consultations and procedures necessary to ensure an open and fair selection process, with Ministerial approval coming thereafter. Many of these respondents, however, expressed reservations if Government responsibility were to disappear entirely.
Many respondents who thought the public interest would suffer considered that an independently-awarded mark of excellence was an important component of the adversarial court system in England and Wales. The general view was that, since judges rely heavily on the quality of advocates to help them come to the right decisions, there is an obvious public interest in maintaining and encouraging high standards of advocacy, and the possibility of taking Silk is the best way to achieve that. This view was expressed by the Bar Council, among others.
Some respondents considered that public interest would suffer because public confidence in the standards of the Bar would diminish, or that the absence of Government responsibility would undermine or devalue any replacement quality mark scheme. One member of the judiciary expressed the fear that the absence of Government involvement would jeopardise "public confidence in the 'official status' of the consultant level of the Bar".
A small number of respondents said that, because public funding and Government resources are involved in the legal process, that justifies direct Government responsibility for the selection process of any quality mark.
There were respondents who considered the success of the current system to be based on Government involvement, and expressed doubt that any alternative body would have similar resources at its disposal, with the result that any replacement scheme would be less effective, independent and incorruptible. Others considered the accountability resulting from Government involvement to be crucial to the success of any quality mark scheme.
A small number of respondents expressed the paramount importance of an absence of Government involvement in any selection process, albeit without fully explaining why they considered this the case.
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?
Sixty seven of the 192 respondents who answered this question did not consider that the State should continue to be involved in the award of QC but did not see constitutional change as necessary, expressing the view that the title should be changed to Senior Counsel, thereby doing away with The Crown's involvement and the need for constitutional change. A local Law Society said that the absence of State involvement in a quality mark "does not stop the Bar from adopting its own nomenclature ('Senior Counsel' for example)".
Some respondents suggested alternative persons to advise The Queen on the award of QC in place of a Minister. Most of these respondents named the Lord Chief Justice as the most appropriate to undertake the function, though others suggested simply "a member of the senior judiciary". A few respondents advocated the creation of a transparent and independent committee, similar to that proposed for judicial appointments, to advise The Queen. Many of these respondents did not address the issue of accountability to Parliament, though one suggested this could be achieved if the committee were chaired by a Government Minister.
Other respondents expressed the view that an independent body responsible for the selection process should advise an appropriate Government Minister, who would be required merely to rubberstamp their recommendations before advising The Queen, thereby doing away with the need for someone other than a Minister to advise the sovereign, and avoiding the need for change to current constitutional arrangements.
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?
If you support the option in Question 4, as the Government will be establishing a judicial appointments commission, should this be the advising body? What are your reasons?
Sixty nine per cent of the 171 respondents who answered Question 4 considered that it would be possible for the relevant Minister to make recommendations after guidance by another body.
Most respondents considered that the Minister should be expected to follow that body's recommendations, without being bound to do so, provided he is accountable to Parliament. The Bar Council considered that the arrangement should comprise: "a small independent selection panel chaired by a distinguished individual. The panel should comprise a former senior member of the judiciary, senior members of the legal profession, and lay people...This independent panel could readily operate either within the Judicial Appointments Commission (as a sub-committee), or alongside the Judicial Appointments Commission supported by a common staff. We believe there might be considerable economies of scale in the latter arrangement. Alternatively the panel could operate with administrative support from within the Department for Constitutional Affairs. It could also operate on a free-standing basis with its own secretariat. The use of a panel is in line with the recommendation made in the Glidewell Report". The Criminal Bar Association expressed the view that: "Public accountability requires oversight and supervision by elected representatives who can act on the advice of an independent selection panel but may challenge such recommendations according to pre-agreed criteria in exceptional circumstances, for example, for reasons of national security". The North Eastern Circuit Bar expressed support for: "the recommendation of Silk by a minister of the Government as advised by a judicial body or arm of the proposed Judicial Appointments Board. It is of no great significance that the disciplinary system dealing with breaches of that duty is dealt with by the Bar Council. The system works well. Further, the QC system plays an extremely useful part in identifying future candidates for appointment as senior full-time judges. There are great similarities in some of the criteria for appointment as a QC and for judicial positions".
A large number of respondents, however, expressed the view that this arrangement could not be justified, and that no Minister should be involved in the award of a professional rank. The Law Society considered that no arrangement should exist: "under which a minister has any involvement in the award of a specialist designation that confers a market advantage on advocates or any other category of lawyer. It is important that the legal profession is independent of Government and seen to be so".
Some respondents registered their view that the State should not be involved in the awarding of any professional rank, but considered that if it were to continue in this capacity then the relevant Minister should be compelled to follow the recommendations of the advisory body. The Equal Opportunities Commission (EOC) considered that: "if Ministers are to be involved, despite the EOC's views in the response to Question 3, the EOC does not envisage the need for a Minister to deviate from the recommendations made by an independent appointing body where an objective and transparent appointment process is in place". The Birmingham Law Society expressed the view that: "if there is to be ministerial involvement in putting forward recommendations on the advice of a separate body then the minister should be bound to accept the advice given but the custom of the appointment by the state is an anachronism in modern times in this instance".
Some respondents referred back to their answers to previous questions, in which they considered that a primary reason for the abolition of the QC system is that the State should have no involvement in conferring a professional rank. The London Solicitors Litigation Association did not consider that: "the relevant Minister should continue to be involved, in making 'recommendations' ".
Most respondents who considered that this arrangement could be justified also considered that the proposed Judicial Appointments Commission (JAC) would be an appropriate advisory body. Most considered that the selection and appointment procedure required is very similar, and that the JAC would be the most cost effective and viable option. The Criminal Bar Association considered that the JAC: "would serve the purpose well. The appointment of judges and QC's requires very similar vetting, supervision and assessment skills. It would be cost effective to have two consecutive appointment periods to allow full employment of the assessment capabilities of the staff". The North Eastern Circuit Bar also considered that: "the Judicial Appointments Commission could be an advising body or it could have a section of it, which deals solely with Silk appointments".
Many of the respondents who did not consider that this arrangement could be justified expressed the view that even were this arrangement acceptable, the JAC should not be involved. The Law Society considered that: "the advising body should not be the Judicial Appointments Commission. Advocacy is no longer a criteria for judicial appointment. However, in the view of the Law Society, a widespread perception exists amongst members of the legal profession and the public that designation as a QC is an essential prerequisite to achieving high judicial office. We believe it is important in encouraging a wider diversity of applicants for judicial appointment that this perception is eroded. As the consultation paper itself notes, there is a danger that if the Judicial Appointments Commission were to have responsibility for designating QCs, the perception would be strengthened rather than removed". The Commissioners for Judicial Appointments said: "nor do we consider that it would be appropriate for the new Judicial Appointments Commission to be involved as this would perpetuate the traditional confusion between the requirements for appointments as Silk and those for appointment to judicial office".
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 for any new quality mark scheme that the Bar Council and/or the Law Society (or any other body) might decide to introduce? What are your reasons?
Eleven per cent of respondents who answered this question considered that the Government should have an ongoing role in any replacement quality mark scheme. 89% considered that the Government should not be involved.
A vast majority of the respondents considered that if the rank of QC were abolished, the Government's role in overseeing any new quality mark scheme should also come to an end.
Most of the respondents expressed the view that the professions themselves would be capable of awarding their own quality mark or marks, and self-regulating such a scheme. A local Law Society commented that: "the hallmark of a profession is self-regulation". Some respondents expressed the view that the Government should be responsible for monitoring this new scheme; a small number suggested that the OFT should pay particular attention to this new scheme, for an unspecified length of time, to ensure it operates fairly and transparently.
Some respondents considered that Government involvement in any replacement scheme should be prohibited to safeguard the independence of the profession from political considerations. The Law Society of Scotland expressed the view that: "a benchmark of quality independently assessed...is both in the public interest and in the interest of the legal profession". Many of these respondents considered that an independent body should have an ongoing role in overseeing the framework for any new quality mark scheme, though suggestions concerning the composition of such a body differed significantly. Some respondents said that it should be drawn from the judiciary alone, others that the judiciary and members of the public should form such a committee, while others still suggested the JAC or the Lord Chief Justice could fulfil a similar role.
Some respondents questioned the discussion of future Government involvement in any new quality mark scheme. Some of these believed that the Government's current role in the award of QC was one of the primary reasons for abolishing the present system. Others said that they supported the QC system and would prefer to keep it, but that its one problem was the Government's involvement.
A small number of respondents considered that Government involvement in any new scheme should continue, believing that any replacement scheme would be undervalued and undermined in the eyes of the public if Government were no longer part of the process. Others cited the involvement of public funding in the justice system as necessitating the involvement of Government in any quality mark scheme.
There were respondents who expressed the view that Government involvement should be limited to avoid unnecessary bureaucracy and time-wasting. Other respondents argued strongly against the introduction of any new quality mark scheme, believing it to be unnecessary.
Do you consider that the rank of QC in its current form benefits the public? What are the reasons for your view?
Sixty six per cent of the 339 respondents who answered this question considered that the rank of QC in its current form does benefit the public, and a large number of these considered its value as a quality mark to be its principal benefit. The Rt Hon Lord Bingham of Cornhill, writing on behalf of the serving Law Lords, expressed the view that: "Queen's Counsel is recognised, in this country and well beyond this country, as a kitemark of quality as an advocate and a guarantee of professional integrity". Another respondent considered that: "the distinction is well worth retaining as a benchmark of quality".
Some of the respondents who considered the rank of QC to be an effective quality mark believed that this, in turn, encourages public confidence in the justice system. A current QC expressed the view that: "a defendant facing serious charges, with the obvious consequences upon conviction, has to be reassured that counsel instructed has the necessary skill, experience and integrity".
A significant number of respondents considered the rank of QC to benefit the public by helping to maintain high standards at the Bar. One respondent noted that: "these standards are perhaps especially important in criminal law, where any lowering of standards could risk serious miscarriages of justice". Of those respondents who made this point, a large number considered it to result from the career path that the QC system provides barristers. One respondent, a practising QC, said that: "the existence of Silk encourages the maintenance of the highest standards of assiduousness, competence and integrity, as it well knows that deviation from those standards would put the recognition and rewards of 'Silk' out of reach. It is manifestly in the interests of both the client base and wider public that those standards are maintained". The Law Lords had the same view and considered the rank of QC to: "encourage observance of the highest standards by those seeking appointment".
A small number of respondents expressed the view that the public benefits from the rank of QC in its current form because of the international recognition afforded the rank. One respondent commented that: "in cases with a foreign element where there is a choice of the forum, the existence of the QC system is, as the Lord Mayor [of London] has pointed out, of inestimable advantage in persuading litigants to litigate here, thereby supplying high intangible inward investment to the economy". Other respondents, however, expressed doubt on this point. One such respondent rejected the claim that: "the mark is internationally recognised and a substantial source of foreign earnings" on the grounds that: "if that claim were to be substantiated, the Bar Council would have to demonstrate a barrister who has global recognition. As far as I am aware no such barrister has global recognition".
Thirty one per cent of respondents, however, expressed doubt that the QC rank in its current form benefits the public. A large number of these considered the rank to be ineffective as a quality mark because of its 'necessarily subjective' nature. One senior member of the judiciary considered the rank to be: "simply a subjective mark of approval, rather than any sort of appointment to fulfil a particular function" and expressed the view that: "the lack of objective criteria for appointment, and the erratic nature of the appointment process" undermined the rank as an effective quality mark. Furthermore, the criteria for appointment were considered ineffective, being: "either platitudinous, as simply repeating qualities any professional advocate should possess, such as intellectual ability and integrity; or self-referring".
Other respondents considered the rank to be flawed as a quality mark because it cannot be removed, despite the possibility of decline in the skill of its holder. The OFT considered that: "in making the QC award a once and for all award, its value to users of legal services is severely limited". Others expressed doubt as to the effectiveness of the rank as a quality mark because it placed too heavy a premium on advocacy, to the detriment of other equally desirable qualities, while others still considered the rank to be too generic and expressed desire for a more specific rank, believing that this would better serve the interests of users of legal services. Some respondents not only considered the rank of QC to be ineffective as a quality mark, but also expressed the view that any quality mark system was unnecessary. One such respondent considered that: "selection of leading counsel is performed by an informed market - junior counsel or solicitors. The basis of the decision is merit. No quality mark system is necessary", while the OFT also highlighted the fact that: "growing availability of alternative information on barristers has blossomed in recent years".
A large number of those respondents who expressed doubt about the public benefits of the QC rank were concerned about its effect on competition. The OFT considered that: "the QC title may operate to distort competition in a number of ways", citing the step-change in fees that QCs: "are said to command", the unwillingness of courts to assess junior counsel's fees at the same rates as QCs when awarding costs, and de facto demarcations enforced by the perceptions of judges, solicitors and lay clients concerning appropriate work for QCs, as all having the potential to distort competition. The OFT also considered that: "the operation of the QC title displays, or at least has displayed, elements of a quota system and...some quantitative as distinct from purely qualitative criteria may apply", and expressed the view that this might further distort competition. Many respondents shared this concern, and one considered that: "the State, by giving the appearance that there is a group of individuals within the profession with the requisite ability and experience, effectively creates a quasi-legal cartel with a concomitant ability to drive up fees".
A few respondents expressed the view that the rank of QC in its current form serves to mislead a largely ill-informed public, with the result that many people feel at a disadvantage if they are not represented by a Silk, in spite of the fact that their particular case may not require or warrant representation by a QC. One practising solicitor considered the rank to be: "widely misunderstood", commenting that: "many people believe that all barristers are QCs and so ask for Silk needlessly; many demand a Silk out of lack of confidence in juniors which would not exist otherwise; many feel they must have a Silk because the other side have one". Another respondent expressed concern that: "litigants feel they are at a disadvantage if they are not represented by one of 'Her Majesty's Counsel' ".
A small number of respondents expressed concern about the deference with which members of the judiciary sometimes treated QCs, and the problems this brought for the administration of justice. A member of the judiciary commented that: "The very presence of a QC puts their client at an advantage over Junior Counsel. No judge should have to start a case knowing that they have to put to one side any impression that one party is immediately advantaged". One practising member of the Bar agreed, saying: "one of the very reasons why solicitors occasionally advise their clients to pay extra for silk is so that they get some extra 'muscle', to put it crudely, the anticipation being that the Tribunal will be naturally inclined to give the party with the silk a greater 'benefit of the doubt' ".
A number of respondents, both those who considered the QC rank in its current form to benefit the public and those who did not, touched on the issue of the judiciary pool. The Law Lords considered that: "the rigorous process which now underpins appointment to silk does, even if incidentally, yield a public benefit, in identifying the pool from which High Court judges and circuit leaders and many recorders, inquiry chairmen etc are, and are likely to continue to be, drawn". Other respondents, however, expressed concern about this. One retired member of the senior judiciary considered that the QC system: "may do damage by narrowing the field from which the higher judiciary is by convention usually recruited".
In the light of arguments set out in this section, do you think the current system should be abolished or changed? What are the reasons for your view?
Of the 354 respondents who answered this question, 49% considered that the rank should be retained, 22% considered that the rank should be abolished, and 28% considered that it should be changed.
An overwhelming majority of respondents, both those favouring abolition or change of the current system and those in favour of its retention, explained their views by referring back to the answers they had given to the previous question (about the public interest). Those who considered the rank of QC to be in the public interest mostly favoured the retention of the system for that reason. Similarly, those who saw no public benefit in the current system expressed support for the abolition of the rank, or else considered that comprehensive changes were required to improve the current system.
Of the respondents favouring abolition of the current system, many gave the reason that the QC system is not in the public interest, as mentioned above. Others expressed the view that the current system is not in the interests of consumers of legal services, as distinct from the general public's interest.
Other respondents expressed support for abolition of the current system because they considered no quality mark system necessary, saying that solicitors are responsible for most referrals to QCs and, as informed professionals, are unlikely to require a quality mark to perform this function. One member of the judiciary commented that: "barristers receive their instructions from solicitors. The exceptions to that rule are in the specialised areas, where instructions tend to come directly from other professionals. In these circumstances the choice of barrister is left to another professional, who is well able to assess the suitability of the choice without recourse to a separate mark of distinction. The present system distorts that choice". Similarly, the OFT said that abolition of, or at least a radical and comprehensive change to, the system was necessary: "given that on the one hand, the circumstances in which the QC system operates are not those in which a quality mark is likely to assist the public, and that on the other, the key conditions for the operation of any quality mark are either absent or subject to controversy".
A small number of respondents expressed the view that the current system should be abolished because they considered it to be outmoded and incompatible with present requirements. One respondent said that: "the continued existence of what is in essence an elite, expensive and unnecessary tier of legal representation is an anachronism within a profession that should be independent, cost effective and accessible to the public".
Other respondents who considered that the current system should be abolished gave more general reasons to justify their view, such as the restrictions and privileges that the current system confers. One respondent said that the current system amounted to an "unwarranted restrictive practice", while another referred to its "unacceptably high negative impact". Others considered the system "unacceptable" or "flawed", while one respondent considered abolition of the current system preferable to "a series of minor reforms".
The majority of respondents considered that the selection and appointment procedure for the rank should be changed in some manner. This included many respondents who considered that the rank should be abolished, but that if it is to be retained, these aspects are in need of reform. Many considered that state involvement in the selection process should end, and that the process ought to be conducted by the profession itself, or by an independent committee. One respondent said that: "the rank should be retained with selection carried out by an independent body". This view was shared by many practising QCs, one of whom said that: "as to the body that makes the final decision, it should not be the Lord Chancellor's successor but an appropriate committee independent of government and state, whether or not that decision is formally implemented by The Queen on the formal advice of a minister".
Other respondents expressed support for a change to the selection procedure on the grounds that appointments would benefit either from a greater degree of transparency, or from a change to the criteria upon which appointments are made. The Bar Association for Commerce, Finance and Industry said that: "the present system of silk should be made more transparent - both in application, selection and award" and that: "all barristers, whether employed or self-employed, should be treated on an equal footing and considered on their merits, expertise and contribution to the legal profession in any application for an award of excellence". Other respondents went further, and expressed the view that the rank should be opened to all members of the legal profession, while others still considered that the criteria should be changed to reduce the emphasis on advocacy. A solicitor Silk respondent considered that: "if there is to be a 'kite mark' it must be awarded on the basis of a level playing field for the whole legal profession. It should not necessarily just be based on advocacy". Other respondents suggested that an appeal procedure be introduced to the appointment process (this is dealt with in more detail under Question 23).
Some respondents had other reasons for changing the current system, including a reversion to the 'two counsel' rule. One respondent considered that: "if QCs are to remain, the public must be protected by the re-introduction of the 'two-thirds' and 'two counsel' rules [respectively, the linkage between the junior advocate's fees and the QC's fees in cases in which two counsel were required, and the requirement that QCs should only act with a junior]. Nowadays being a silk is no guarantee of ability". Another respondent expressed concern at the number QCs silks appointed under the current system, and considered that the system should be altered for this reason: "there are too many silks. The rank should be limited by number and...be reserved for those who can demonstrate that in their practices they have served the public interest generally". A further respondent repeated this view, and considered that: "there ought to be two new quality marks below the level of silk. One would recognise significant expertise in specific topics within broader areas of practice...the other would recognise ability in advocacy".
A great many respondents expressed the view that the system should be retained in precisely its current form, largely because they considered that change would involve considerable risk, or because they believed the current system worked effectively, saying that: "if it ain't broke, don't fix it". Several said that, in their view, the present system was the best that could be devised. Suggested potential dangers stemming from change included the difficulty of maintaining standards were the effectiveness of the quality mark to diminish, and more general comments such as one respondent's conclusion that: "the loss would outweigh any gain". Other respondents drew on the examples of changes made in other countries; one expressed concern that: "suggested reforms would merely be dangerous experimentation that has already proven harmful (in Australia and elsewhere) and therefore would not be in the public interest". Other respondents agreed that any attempts at reform of the system would be likely to harm the public interest. One solicitor considered that a change to the system would: "leave a gap in the profession that would ultimately affect, in criminal cases, the Defendants whose interests must be paramount", while a partner at an international law firm expressed the view that a change to the system: "would diminish the Bar, it would diminish the standing of English law, and it would not diminish the costs of legal services".
A number of respondents expressed disappointment that the consultation paper sought to put the burden of proof on those defending the current system, rather than on those seeking its abolition.
Do you consider that the legal services market is sufficiently sophisticated to allow solicitors to choose appropriate barristers without the need of the QC mark? What are your reasons?
Of the 188 respondents who answered this question, 48% considered that the legal services market is sufficiently sophisticated to allow solicitors to choose appropriate barristers without the need of the QC mark. Almost the same proportion disagreed.
A great many respondents considered that while the sophistication of the legal services market is sufficient for some, particularly specialist solicitors, to choose appropriate barristers without needing the QC mark, a large number of less specialised solicitors, as well as small firms and firms outside the main cities, do need it to help make the right choice of advocate. This view was expressed by both solicitors and barristers. The Bar Council said that: "most firms are still relatively small, cover a range of fields, providing an essential service on the ground for clients. Most solicitors work in the smaller firms. It is not suggested that there will be reliance on the QC status alone, but the rank is one of the things that can help in the task of identifying the appropriate advocate". The Writers to the Signet Society (in Scotland) considered that: "as outside solicitors using silk infrequently, we need the reassurance of the external title", while another respondent from a firm of solicitors based in the provinces expressed the view that: "in our most complex and serious cases it is vital that, as a provincial firm of solicitors, we can be guided in our choice of advocate by the guarantee of quality within the present rank of QC".
Other respondents simply expressed the view that some solicitors need the QC mark to make the appropriate choice of advocate, without distinguishing which solicitors in particular might have greater need of the mark. The London Common Law and Commercial Bar Association considered that: "not all solicitors would have the sophistication to choose an appropriate barrister in all cases that the solicitor may be called upon to assist with. A QC mark will continue to assist those solicitors and, as a result, those members of the public that they are helping".
Many of the respondents considered that the QC mark is essential in allowing solicitors to choose appropriate barristers, because without it there would an absence of an objective quality mark. Most of these respondents were concerned that the alternative sources of information available to solicitors are inadequate guarantees of quality and susceptible to influence in a way that a transparent selection process, with clear criteria, is not. The Bar Council considered that: "the Consultation Paper points out that there is now a range of reference books and websites which identify experts in different areas of practice. We of course accept the value of these sources. However, we wholly endorse the point made in the Consultation Paper that they can be subject to bias or error. Indeed, the entries are compiled on the basis of comments assembled without any of the safeguards that have been developed in the QC process. This view of the guides is supported by the great majority of barristers at the Employed Bar whom we have consulted". The Criminal Bar Association said: "without the state appointed rank consumers will inevitably be forced to rely upon qualitatively and statistically imperfect publications produced for profit, on individual self promotion or on length of service or price rather than proven skill and integrity. It is simply not possible for the average publication to adequately assess the ability of individuals without the unique insight and long perspective afforded to the current panel used by the Lord Chancellor's department". Similarly, the PIBA considered that: "without such a system, solicitors will still be able to select counsel, by experience, recommendation, or reputation, but limited by the quality of the solicitor's own experience, database and gossip, which will be less accurate, more unfair, narrower and in its essence more anti-competitive than the refined system for Silk which PIBA supports".
Other respondents expressed concern that without the QC mark to assist them, solicitors' choices of advocates would be based on inappropriate factors. One QC expressed the view that without the aid of the QC mark,: "some solicitors would instruct their 'favourite' counsel who may or may not be 'up to the case'" while another respondent, also a QC, considered that: "abolition of any senior rank would leave the field completely unregulated, with the heavy work going to those who can impress the most solicitors (who may rarely have seen them in court at any length), or who were at Cambridge with the most solicitors, or who have four friends who chance to get called by Chambers Directory, or who have a loyal prison following who like them because they are not averse to the odd forensic short cut".
Some respondents said that while solicitors may be able to make appropriate choice of barrister without the QC mark, the mark is still necessary because solicitors are not exclusively responsible for instructing barristers. The Institute of Legal Executives considered that: "there are, however, service buyers who are able to directly brief Counsel, who are not within the legal services sector. Such buyers would be assisted by a quality mark awarded on the basis of open and objective criteria". The Law Society also acknowledged this point, and expressed the view that: "Therefore, we see the value of developing existing and new accreditation schemes that could assist consumers in their choice of solicitors and barristers".
A small number of respondents expressed concern that without the QC mark to assist them, solicitors would be less able to convince or reassure their clients that they had made an appropriate choice of counsel. Most of these considered that this would reduce the number of foreign claimants willing to litigate in this country, to the detriment of the English Treasury and the reputation of the country's legal system. The Bar Council expressed the view that: "experience shows that foreign firms and clients find the rank useful".
A large number of respondents considered that the legal services market was sufficiently sophisticated to allow solicitors to choose appropriate barristers without needing the QC mark because solicitors have access to other information to inform their choices. The OFT considered that: "the availability of alternative sources of information on barristers has blossomed in recent years. Publications, in particular, the Chambers Guide and the Legal 500 have emerged to provide guidance by subject areas to the top barristers in each major field. While total accuracy and independence of such guides cannot be guaranteed in every case, they have a clear advantage as an information source over the QC title in that they are produced annually, indicate areas of expertise and reflect continuing changes in barrister performance, in contrast to the once and for all QC title. We doubt that a lay or professional client who was ignorant of the top barristers in a particular legal field would choose a barrister by reference to their QC status alone, without referring to such guides. The QC system adds little if anything to the process". The Law Society expressed the view that: "the legal services market is sufficiently sophisticated to allow solicitors to choose appropriate barristers without the need for the QC designation. Responses to the In the Public Interest? consultation demonstrated the various ways in which solicitors seek to ascertain the appropriate person to brief in a particular case. The In the Public Interest? consultation responses also noted that many firms systematically review how barristers whom they have instructed have performed. The consultation paper also notes that there are a range of public commentaries on lawyers and their specialisms".
Other respondents expressed the view that the increased specialisation of solicitors and the improved networks of communication between them further assisted them in making appropriate choices of barristers without the need of the QC mark. The Association of Women Barristers considered that: "solicitors are more specialised than in the past, belong to professional associations, e.g. SFLA, e.g. belonging to specialist Law Society Panels, e.g. Family Law, mental health. Barristers' reputations may be gauged from case reports, textbooks, periodicals and directories. If anything, the rank of QC may unfairly depress the careers of women, ethnic minorities and solicitors. Women are about 10% of QCs and are less likely to be regarded as 'suitable' due to institutional discrimination inherent in the current selection process". Another respondent expressed the view that: "the consolidation amongst all solicitors' firms in recent times has enormously increased the sophistication of the purchasers of legal services from the Bar", while the London Solicitors' Litigation Association considered that: "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, judgement and gravitas to take on a particular Brief".
Some respondents expressed the view that not only were solicitors capable of making an appropriate choice of barrister without the need of the QC mark, but that, this being the case, the mark actually distorts the market. One member of the judiciary considered that "barristers receive their instructions from solicitors. The exceptions to that rule are in the specialised areas, where instructions tend to come directly from other professionals. In those circumstances, the choice of barrister is left to another professional, who is well able to assess the suitability of the choice without recourse to a separate mark of distinction. The present system distorts that choice". The OFT expressed the view that the QC mark: "is intended to denote skill in advocacy. However, it may be seen by some as indicating general expertise, across a range of skills and areas of practice. If used by an instructing client without regard to further information as to relevant skills and specialisation, the label is thus apt to mislead rather than inform".
A small number of respondents considered that this was a loaded question, or tendentious. They expressed the view that although the legal services market is sufficiently sophisticated to allow some solicitors to make the appropriate choice of barrister without need of the QC mark, this may not be true for all solicitors, and that even if it were true, this does not mean that the QC mark is without merit.
If the rank should continue, should it also enjoy its traditional formal privileges of dress, position and precedence?
Fifty five per cent of respondents who answered this question considered that the traditional formal privileges of dress, position and precedence should continue. Twenty eight per cent of respondents said that these privileges should no longer be extended to QCs.
A great many respondents did not provide reasons for their answers to this question, or said that the issue was unimportant.
Of the respondents who considered that the rank should no longer enjoy its formal privileges, most expressed the view that they provide QCs with an unnecessary and unfair advantage in court. The Law Society considered that: "QCs should not retain the traditional formal privileges of dress, position and precedence. The Law Society believes all advocates in court should appear to enjoy the same level of respect and attention in the court. Otherwise, clients of junior counsel or solicitor advocates can form a perception that they are disadvantaged if the other party has instructed a QC". The London Solicitors Litigation Association considered that these formal privileges should not continue because the consumers of legal services should not be: "influenced by where 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".
Other respondents said that these privileges are archaic and outdated, and that they ought to be modernised.
Some respondents considered that these formal privileges should be retained because it is important to have a distinguishing mode of dress in court.
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?
Of the 139 respondents who answered this question, 73% considered that if the QC rank were to be abolished, it should be replaced by another quality mark. Twenty two per cent considered that it should not be replaced.
A large number of respondents said that the QC rank should not be abolished, and thus did not consider replacement quality marks. The Bar Council did not consider: "that the QC rank should be abolished as a State appointment" and the Criminal Bar Association said: "we do not consider that the rank should be abolished".
Of the respondents who considered that the QC rank should be abolished, the majority considered that it should be replaced by a quality mark system run by the professions. Some of these respondents said that the Bar Council should be responsible for awarding a new quality mark, others suggested the Law Society, and others still suggested the Inns of Court, though most respondents considered that a combination should oversee appointments. The Institute of Legal Executives expressed the view that: "this would be a matter for the Bar Council...ILEX believes that a properly based quality mark would be of value". The London Solicitors Litigation Association considered that a new quality mark: "should be developed by both the Law Society and the Bar Council jointly" and the Law Society said: "quality marks can play a useful role in assisting consumers to choose their lawyers. We believe such quality marks should be organised by the professional bodies but should have some degree of independent scrutiny in order to ensure public confidence in their rigour".
Some respondents considered that the body responsible for awarding a new quality mark should include independent members of the public. Crown Office Chambers, the London Solicitors Litigation Association, and the International Underwriting Association of London all favoured including a lay element in the selection process "so as to assure the public that selection will be fair and non-discriminatory in any way".
A significant number of respondents considered that were the QC rank to be abolished, it should not be replaced by a new quality mark.
Some of these respondents simply expressed the view that a quality mark is unnecessary. The Discrimination Law Association did not consider that: "an alternative system of recognising senior counsel is necessary. It notes that outside the common law systems most jurisdictions have no such system. This is true also of the United States". Some members of the Birmingham Law Society expressed the view that: "there should be no quality mark, that those who achieve it have used it to charge higher fees than those that have not and that therefore it is not in the public interest to have it". Other respondents considered that no replacement quality mark would be required because the market should be left to operate unassisted.
A few respondents considered that a system of specialised grading or accreditation should replace the QC rank, rather than a new quality mark. The Association of Personal Injury Lawyers (APIL) expressed the view that: "a system of accreditation in specialised areas of law, including personal injury, would be more appropriate. In short, accreditation would facilitate the informed selection of lawyers, especially barristers. In addition we believe that a system of accreditation would address a widely-held concern about the selection of QCs. It is recognised that the Lord Chancellor's Department (now the DCA) has made great efforts to ensure that selection criteria are clearly defined and objective. Informal consultations, however, continue - a procedure that APIL cannot support because it is neither fair nor transparent". The Motor Accident Solicitors Society considered that: "a grading system would be more appropriate than either the current system or no quality mark at all. However many solicitors and barristers and, no doubt members of the public would be loth to lose the idiosyncrasies and tradition of the current system. We see no reason why the pinnacle of the grading system could not be called Queens Counsel".
Some respondents took this opportunity to express concern over the suggestion that the proposed Judicial Appointments Commission should be responsible for awarding a new quality mark. The Law Society was opposed to: "the Judicial Appointments Commission having a role in a new quality mark. The Commission will have an already extensive programme of work to modernise the appointments procedures and to encourage greater diversity of applications. Secondly, it is important to break any perceived link between a quality mark for advocacy and judicial appointment, as advocacy is no longer a criterion for judicial appointment". The Commissioners for Judicial Appointments similarly expressed doubt that: "it would be appropriate for the new Judicial Appointments Commission to be involved as this would perpetuate the traditional confusion between the requirements for appointments as Silk and those for appointment to judicial office". Other respondents did, however, consider that the Judicial Appointments Commission should be involved in the selection process.
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 your reasons?
What do you consider would be the impact on advocates' fees (QCs and juniors) if the rank were to be removed?
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?
On the impact on legal costs if the rank of QC were to be removed, opinion was fairly evenly divided among the 217 respondents who answered. Thirty one per cent considered that legal costs would increase, 34% considered that they would decrease, and 35% considered that they would remain broadly the same.
Of those respondents who believed that legal costs would increase, the majority considered that this would result from junior advocates increasing their fees to those currently commanded by QCs. The Chancery Bar Association believed there was a risk that: "if the two-tier system were to be abolished, ex-QCs would not reduce their fees but some juniors would significantly increase theirs, the glass-ceiling having been removed. The net effect of abolition may well therefore be to increase the cost to the public rather than to reduce it". Crown Office Chambers expressed the view that: "the presence of accepted charging rates for QCs probably imposes a loose limit on the rates than can be charged by non QCs practising in the same area. With the abolition of the rank of QC this fetter will gradually disappear and overall fees are likely to rise". The South Eastern Circuit Bar said: "there will be attempts by juniors to assert that they have reached a level that previously would have led to silk and, therefore, they should be paid accordingly. The abolition of the rank of QC is therefore unlikely to have a beneficial or palliative effect on fees whether viewed from the position of the service provider or the customer".
Other respondents who said that the removal of the QC rank would be likely to increase legal costs considered that this would derive from an increased reliance on promotion and marketing in the legal service market, which would provide advocates with an extra and necessary expense. The Criminal Bar Association considered it highly likely that: "overall costs would rise as the profession engaged in increased promotion and marketing and this would be reflected in fees".
Some respondents said that the removal of the QC rank would also increase the costs of the judiciary. The Criminal Bar Association considered that: "the costs of the judiciary would rise. Specialist judges would be required as the generalist judge would no longer be able to rely upon the impartiality and skill of the QC in complex cases. The court would require independent sources of information as reliance upon the senior advocate lessened and greater oversight of the process would be required. There could be no certainty or reliance upon the completely impartial presentation of an opponent's position in their absence. There would be no independent measure of the advocate's worth or ability beyond mere term served. The inexperienced would take complex cases leading to wasted costs, delay and miscarriages of justice".
Other respondents simply expressed the view that legal costs would increase in the event of the QC rank being removed. The Judges' Council considered that: "the abolition of the Silk system would be unlikely to achieve any reduction in fees charged by advocates. The most successful advocates would continue to maintain a dominant position, greatly in demand, and capable, because of the demand for their services, of seeking, and obtaining, the highest level of fees. Indeed, it is not impossible that there would be something of a generalised increase in the fees charged to clients". One member of the judiciary expressed the view that removal of the QC rank: "would almost certainly result in timeless criminal trials and a significant increase in costs".
Of the respondents who considered that the removal of the rank of QC would reduce legal costs, the majority said that it would result from the removal of the step-change in fees reputedly commanded by advocates achieving the rank of QC. The Law Society considered that: "there would be some deflation in fees charged by senior advocates as there would not be an automatic uplift of fees when a person was appointed a QC". The London Solicitors Litigation Association expressed the view that: "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".
Other respondents said that the expected reduction in legal costs would result from the operation of market forces and unrestricted competition in the legal services marketplace. The Association of Women Barristers considered it likely that "legal costs would be reduced because the scale of fees would be based on market factors. The fees of QCs are significantly higher than the costs of equally competent non-QCs". The Birmingham Law Society expressed the view that: "market forces should apply to all advocates in privately funded cases. In publicly funded cases, the fees of the most senior advocates would probably fall if there were no quality mark. It is unlikely that this would result in an increase in the fees of the less senior advocates". Another respondent expressed the view that: "QCs would be under pressure to decrease their fees to compete with experienced senior juniors and solicitor advocates. The fees for QC's in publicly funded work would be capable of further reduction".
Some respondents considered that legal costs would diminish because the cost of legal aid would decrease in the event of the QC rank being removed. The Law Society said that the removal of the QC rank: "may ease some pressure on the legal aid budget since there would be a more graduated method of assessing the fees payable for complex cases, as suggested in the consultation paper itself. Advocacy fees would be paid only as 'reasonable' fees for the nature of the work undertaken (i.e. regardless of the status of the advocate) and would be subject only to uplift for particular independently validated specialisms. This would bring advocacy fees under control and could help to raise the quality of the work done".
Other respondents said only that legal costs would decrease in the event of the removal of the QC rank. The Institute of Legal Executives considered that: "legal costs would be likely to fall".
A great many respondents considered that the impact of the removal of the QC rank on legal costs would be minimal because the most senior advocates would still be known to the consumers of legal services, and would be able to command similar fees. The City of London Law Society expressed the view that: "because of the sophistication of city solicitors and others as users of QC services we consider that the abolition of the rank would have very little if any impact on overall costs. There might be some smoothing or evening out of the rate of escalation of a barrister's fees as sought by the clerk compared to the step change sometimes requested by clerks following an appointment to QC". The London Common Law and Bar Association considered it unlikely that: "there would be any significant impact on advocates' fees if the rank of QC were to be removed. In most fields of practice the taking of silk does not result in an immediate stepped increase in fees. Indeed, the higher the cost of legal services, for instance in commercial work, the more sophisticated are the levels of fees charged. There is no question of any automatic increases in privately funded work".
Other respondents simply considered that costs were unlikely to be affected by the removal of the QC rank. The Bar Council expressed the view that: "the impact on legal costs would be neutral".
Some respondents considered that the ending of QC appointments or the removal of the rank would lead to significant distortions in the legal services market because of the diminishing number of advocates holding the QC title. The Chancery Bar Association considered that: "any unfairness in the distinction between QCs and junior barristers would be perpetuated and worsened in that those who are as good as existing QCs in their practice area and would otherwise have been expected to become a QC themselves would be deprived of the opportunity to do so. Apart from the distortion in the market that would result from an ever-diminishing number of practising QCs, the result might be thought to be particularly unfair to those juniors who were given no notice of the Government's intention to abolish the system and so lost the chance to make an application before the cut-off date". The South Eastern Circuit Bar expressed the view that: "the removal of the rank of QC, particularly if there is no equivalent replacement rank, will have a distorting and destabilising effect. The duration of this effect will depend on a number of factors, including the extent to which precedence and privileges are retained. As the pool of QC's grows smaller by effluxion of time they are likely to be more in demand, particularly by those who select this jurisdiction by reason of its unrivalled reputation for just resolution of disputes". Even if there were restrictions imposed on the use of the rank by those currently holding it following its removal, some respondents still considered that it would distort the operation of market forces. The Chancery Bar Association expressed concern that: "even if existing QCs were abolished as such (i.e. by the issue of letters patent of revocation) the effect would be much the same in that those who were elevated to the rank of QC are well-known in the market and would continue to enjoy a de facto status for many years. We have serious doubts as to whether the Bar Council could lawfully prevent a QC from referring to the fact of his appointment as a relevant professional qualification. The well-documented fact of each QC's appointment cannot be treated as a 'non-fact' ".
Other respondents suggested that the impact of the removal of the QC rank would be confusion in the marketplace, and amongst those solicitors and members of the public wishing to instruct appropriate counsel. The Personal Injury Bar Association expressed concern that: "abolition of the rank would remove an important guiding factor in the selection of a barrister for a member of the public in complex and significant cases. It would therefore make the selection of an appropriate barrister more difficult and the public interest would suffer". The Faculty of Advocates said that the likely impact of the removal of the QC mark would be: "confusion. The present system operates in Scotland whereby the purchaser knows that if he selects a QC there is an expected quality standard. There is confidence in that quality mark. Historically in Scotland there was confusion prior to the introduction of the mark".
A large number of respondents expressed the view that the removal of the QC rank would be likely to end the use of two counsel on particular cases. The Association of Women Barristers considered that: "the instruction of a second barrister is still common as a junior to a QC. It is likely that the instruction of one barrister only would prevail if the status were removed, thus reducing unnecessary duplication. In some cases a second barrister is not essential provided the instructing solicitor has appropriate experience and expertise". However, the Faculty of Advocates expressed concern that "in the absence of a junior, a senior counsel carrying out the work that would have been allocated to a junior may be more expensive than the junior. The team approach means that the client pays for the QC to deal with the more important parts of a case, which carry the greatest responsibility. The junior on the other hand can deal with the parts of the case, such as quantification in civil cases, which are more in keeping with his rank and fee rate. In the absence of the distinction of rank, if any advocate, however experienced or talented, had to do all the work himself or herself, the presentation of the case would suffer. The case for the client would not be presented as efficiently or as cost effectively".
Some respondents considered that the removal of the QC rank would increase and strengthen the independence of advocates, which would provide a public benefit. The Association of Women Barristers considered that: "the removal of judicial soundings and government choice would be likely to strengthen the independence of senior practitioners whose careers would not risk blight by continuing to represent unattractive litigants in cases decided by Judges alone without publicity or juries". However, other respondents rejected the view that advocates' independence is currently compromised. The Chancery Bar Association expressed the view that: "the charge that the QC system undermines the independence of juniors in presenting their clients' cases is unsupported by any evidence and unpersuasive in principle. Any barrister who thinks that a judge is likely to be impressed by a failure to argue a point, however unattractive, to the best of his or her ability, or by an impassioned if fearless rant instead of a more measured and coherent presentation, is not a barrister whose judgement is likely to commend itself either to clients or to judges or senior practitioners commenting for the purposes of appointment as QC".
Some respondents expressed concern that removal of the QC mark would diminish the quality of legal services because the best advocates would no longer be able to concentrate solely on the most difficult work, but rather would likely be forced by market considerations to accept work that would currently be done by a junior. Some respondents also feared a decrease in quality because junior counsel would accept work for which they were unsuitable or inexperienced. Crown Office Chambers considered that: "the system of conferring a badge of excellence on those advocates who are thought to qualify for it, enables senior barristers on appointment to QC to discard much of their former practices and to concentrate on advocacy and advisory work in the more complex cases. In terms of quality of service this confers a huge benefit to clients who can then expect their case to receive the attention it needs. This benefit will be lost if the rank of QC is removed, with the probable result that more junior barristers will be required to do the same work. If there is any saving on price, it will be at the expense of quality to the detriment of the end user".
A significant number of respondents expressed concern that the removal of the QC mark would undermine the confidence in the British legal system held by a large number of foreign clients. Legal Wales considered it likely: "that the high regard in which overseas clients hold the legal system in England and Wales would be diminished with a consequent loss of work in an important market and the loss of foreign income". Crown Office Chambers also expressed the view that the removal of the QC mark: "would undermine the confidence in which our legal system is held in the commercial and common law community throughout the world. The fact that many foreign corporations choose to resolve their disputes in the English courts improves domestic competition and hence the quality of service. If it is seen that the English think so poorly of their method of selecting suitable senior barristers that they are prepared to abolish the rank of QC, this will hardly encourage respect for those who practice in the English courts and who assist in maintaining the enormous contribution made by English barristers and solicitors to the country's invisible earnings".
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?
Twenty eight per cent of the 83 respondents who answered this question considered that the removal of the QC rank would have a positive impact on Direct Access clients, 39% of respondents considered that it would have a negative impact on them, and 33% of respondents that it would not have any effect.
Of those who said that removal of the QC rank would have a positive impact, the majority considered that any replacement scheme would be more beneficial to clients of the Direct Access scheme. The Institute of Legal Executives considered that: "clients would be better served by a quality mark and by good information from the Bar Council regarding the specialisations which chambers are able to cover". Other respondents considered that removal of the QC rank would have the positive impact of reducing legal costs for Direct Access clients. A firm of solicitors expressed the view that: "It is likely that the fees payable by those entitled to use the Bar Council's Direct Access Scheme, would reduce".
The majority of respondents who expressed the view that removal of the QC rank would negatively affect Direct Access clients considered that these clients would be deprived of a valuable quality mark, and consequently would be less well informed about the quality of advocates available to them. The Personal Injury Bar Association considered that: "as for solicitors, an important guiding factor in the selection of an appropriate advocate would be removed. In relation to those using the Direct Access Scheme, the impact would be the greater: in general they are likely to have less experience in selecting and instructing a barrister than solicitors currently have". A local Law Society considered it likely that: "there are some direct access consumers who have less (perhaps significantly so) knowledge of the Bar than solicitors and who might therefore feel less confident about instructing counsel in the absence of a QC kitemark". Legal Wales expressed the view that the impact would depend: "upon how sophisticated the client is. If he lacks knowledge of the advocates available, the rank provides him with some guidance". The Technology and Construction Bar Association considered that: "many clients seeking to instruct Counsel under the DPA [Direct Professional Access] scheme tend, at least in the field of Technology and Construction, to be unfamiliar with the process of selecting Counsel and the identity of Counsel. The rank of Queen's Counsel as one of the sources of information available to them is critical. The abolition of the rank of Queen's Counsel would impact negatively on the efficacy of the current DPA scheme".
Other respondents who considered that a negative impact was likely said that it would result from the fact that, in the absence of a quality mark such as the QC rank, these clients would have to rely solely on other, less objective sources of information. Crown Office Chambers expressed concern that these clients: "will be wholly reliant on legal directories (to the extent that these actually provide relevant information about individual barristers), of which they may well not have copies, gossip, and barristers clerks. The rank of QC is an important objective assessment of the quality of senior barristers that will no longer be available".
A significant number of respondents considered that removal of the QC rank would not affect Direct Access clients in any particular way. The Equal Opportunities Commission expressed the view that: "the abolition of Queens Counsel and the introduction of the award of a quality mark, using the procedures advocated, should not have a negative impact upon the use of the Bar Council's Direct Access Scheme". Some respondents said that this was because Direct Access clients are necessarily experienced and sophisticated legal services consumers.
Other respondents said that these clients would not be affected by the removal of the QC rank because the rank was not a reliable nor useful quality mark. The Law Society considered that: "the clients who qualify to use the Bar Council's Direct Access Scheme could possibly believe that they would find it more difficult to identify the level of advocate they need. However, at present, the designation of QC does not provide a guide to anything other than the advocacy skills for its holder, i.e. it does not provide information about the specialist legal expertise of that advocate".
Some respondents simply expressed the view that removal of the QC rank would have the same specific impact on Direct Access clients as they had predicted for all other customers of legal services, or referred to previous answers because they did not consider that these clients would be particularly affected. Both the Bar Council, who said: "the removal of the QC rank would have a similar impact on the users of this scheme as on other users of the Bar's services", and the Criminal Bar Association, who considered that: "the impact would be no different from that on any of the other users", thus considered that the impact would be negative. The Birmingham Law Society, however, perceived "no impact on the Bar Council's current Direct Access Scheme", having previously expressed the view that removal of the QC rank would have a beneficial impact on consumers of legal services.
What changes, or other kind of scheme, might better help non-specialist solicitors or non-lawyers to choose the right advocate for their case?
Forty nine per cent of the 238 respondents who answered this question considered that neither any changes nor any other kind of scheme would help non-specialist solicitors and non-lawyers choose the appropriate advocate as well as the current QC system does. The Bar Council considered that: "it would not be possible to replicate through another scheme the composite of advantages achieved by the QC system". The Criminal Bar Association said that: "the best scheme would replicate the current, lengthy and thorough observation of QC candidates in all the aspects of their work over a period of many years such as is undertaken by the present system". The Chancery Bar Association considered that: "if correctly and fairly operated the QC system carries with it the imprimatur of reliability and independence of judgement which may be lacking with alternative sources of information such as directories or alternative systems operated by the profession itself".
Forty three per cent of respondents did suggest changes or alternative schemes to assist non-specialist solicitors and non-lawyers, however, a majority of these considered that an accreditation scheme or a series of objective and specialist kitemarks would be a more effective alternative than the current QC rank. The Law Society said that: "accreditation schemes that provide a guide to the holder's expertise in specific areas of law would be of more benefit" and the London Solicitors Litigation Association considered that "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". The Legal Action Group said that: "there may be scope for introducing an objectively assessed quality assurance system, with individuals being subject to regular review. The system could perhaps operate with reference to expertise in particular areas of law. A panel system, similar to that operated by the Law Society for certain areas of law, might be worth considering. It might also be possible to consider a system of banding, based on merit and experience, within which there was agreement that more junior barristers hand cases on to more senior colleagues when a matter progresses to a higher court". The Association of Personal Injury Lawyers considered that an: "accreditation system would enable non-legal purchasers to identify the level of experience (i.e. associate to senior fellow) of specialist personal injury practitioners".
Other respondents expressed the view that a refined QC rank or Senior Counsel system is all that would be required to assist non-specialist solicitors and non-lawyers. The Personal Injury Bar Association considered that: "the retention of a refined and improved system of senior counsel appointed by the State ... is the best help for non-specialists and non-lawyers. Any other scheme will be even more likely to introduce unfairness". The London Common Law and Commercial Bar Association expressed the view that: "there must be greater openness and transparency in the selection process for silk. The Association regards this as an achievable goal within the present system". The Environmental Law Foundation considered that: "a mark of excellence, properly administered and reviewed is a very helpful aid to the non-specialist solicitor and non lawyer. It may be possible to create a Senior Counsel scheme but this will duplicate the QC system".
Some respondents considered that non-specialist solicitors and non-lawyers would be better assisted if there were no replacement scheme following the removal of the QC rank. Of these respondents, some said that doing this would allow the market to operate independently of any new scheme or quality mark, which would be beneficial. The Birmingham Law Society considered that: "there should be no changes to help non-specialist Solicitors or non-Lawyers to choose the right advocate. Reputation and market forces should apply. There should not be a proliferation of changes or schemes for different situations". Others said that no new scheme or quality mark is required because of the increase in alternative sources of information available to non-specialist solicitors and non-lawyers. The Bar Association for Local Government and the Public Services expressed the view that: "the professional bodies, chambers, firms, employed barristers/solicitors etc already provide a lot of information to the public/open market for choices to be made on the right barrister for the circumstances". A small number of respondents considered that no new scheme or quality mark should be introduced because it would be too difficult to create a suitable scheme. The Technology and Construction Bar Association expressed support for the: "observations of the General Council of the Bar. It adds that in relation to the International Legal Community, the difficulties of providing an alternative scheme are materially greater".
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?
Forty one per cent of the 166 respondents who answered this question considered that, without the QC system, it would be impossible to identify practitioners with a suitable level of expertise or case-management skills for matters where QCs are currently regularly used, and many gave this as the primary reason for retaining the current QC mark. The Bar Council considered that: "it would not be possible to replicate through another scheme the composite of advantages achieved by the QC system", while the Criminal Bar Association expressed the view that: "there is no objective appraisal system on offer which assesses the skills and integrity of senior practitioners as well as the present system". Legal Wales considered that: "there is no better system of identifying such practitioners than by consulting the judiciary before whom they appear and their colleagues of standing". The London Common Law and Commercial Bar Association expressed the view that: "consumers of legal services have not identified any better method of identifying exceptional senior practitioners. That is the primary reason for maintaining the present system".
Thirty one per cent of respondents considered that the best way to identify practitioners with a suitable level of expertise or case-management skills would be to consult sources of information currently available, such as legal directories and textbooks, legal charities and academic institutions. The Law Society said: "there are a number of existing ways of identifying practitioners with a suitable level of expertise or case management skills, such as the current websites and directories mentioned in the consultation paper itself". The Association of Women Barristers considered that practitioners with a suitable level of expertise or case-management skills could best be identified by: "reference to professional directories, legal textbooks, journals, case reports and relevant organisations e.g. legal charities and academic institutions".
A significant number of respondents also drew attention to the increasing use of marketing by chambers, which could be used to assist identification of appropriate practitioners. The Law Society considered that: "a number of barristers' chambers, many of whom now employ practice managers, are becoming increasingly sophisticated in their marketing techniques and make their expertise known through the provision of specialist seminars, writing articles, websites and other ways of promoting their services". The Institute of Legal Executives said: "barristers' chambers now provide much more information about their tenants' particular specialisms and expertise". Other respondents commented on the increasing use of advertising material by legal practices.
A large number of respondents, however, expressed concern about relying on alternative sources of information and marketing, and considered them to be unsuitable and unreliable guides to a practitioner's ability. Crown Office Chambers considered that: "leaving the matter to subjective opinion or to the editors of legal directories and gossip would be a thoroughly retrograde step. It would discourage the international commercial community from using senior barristers or advocates because there would be no quality mark of the standing of QC". The Criminal Bar Association expressed concern that: "self-promotion and perceived quality of a person's chambers would replace rational and objective assessment".
A large number of respondents referred to previously outlined kitemark or accreditation schemes, and considered that these would be the most appropriate means of identifying those practitioners with suitable levels of expertise or case-management skills to undertake matters where QCs are currently regularly used. The Law Society considered that: "if new accreditation schemes were to be introduced, it would be a question of drawing up criteria in consultation with experienced practitioners, validating those criteria with users of the various legal services and, with the help of human resources expertise, drawing up objective methods of assessing competence". The London Solicitors Litigation Association expressed the view that: "if it were to be developed, the professions' 'kite mark' standard could be referred to, as well as the lawyers own experience and expertise (and that of the colleagues whom he or she could consult)". The City of London Law Society considered that: "while City Solicitors and others are fully sophisticated enough to make decisions from their own knowledge and that of their colleagues, whether or not aided by the commercial guides, a properly introduced and implemented kite mark scheme...could also be useful".
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?
See responses for Question 12.
What measures are needed to deal with circumstances where the use of a QC has been stipulated as a contractual condition?
Forty per cent of the 118 respondents who answered this question said that it would be difficult to predict the measures required to overcome this problem, and that its resolution could depend on the outcome of a court ruling. The Bar Council considered that: "the effect of the abolition of QC on 'QC clauses' is unpredictable. It would depend on the terms of the particular clause. In case of doubt, it would ultimately depend on a ruling from the court". The Criminal Bar Association considered that: "this would depend on the clause, the contract and the prevailing circumstances". The North Eastern Circuit Bar expressed the view that: "as to the measures needed to deal with circumstances where the use of a QC has been stipulated as a contractual condition, again, we consider that the abolition of the QC rank would make this sort of option very difficult and very complicated to implement. If there was a residual body of QC's left after any prospective abolition then the competition would be unfair in relation to those advocates who would otherwise have been appointed QC but because the system no longer existed, are now not going to be so appointed".
A large number of respondents considered that such clauses should be replaced by a clause stipulating a lawyer with a certain number of years' experience in the particular field. Most of these respondents suggested that ten to fifteen years would be sufficient, and expressed the view that the key issue as regards these contracts is not status, but expertise. The Law Society considered that: "where a QC is specified, such contracts should be deemed to mean a solicitor or barrister of at least 10 years experience and good standing who is experienced in the required field of law". The Association of Women Barristers expressed the view that: "if the status is abolished such contracts should be discouraged as they would unfairly exclude non-QCs and be uncompetitive. However, a contract could stipulate the use of a lawyer with so many years experience in a particular field at High Court level and above or such other criteria relevant for the purposes of the instruction". The Birmingham Law Society said that: "where the use of a QC has been stipulated as a contractual condition this reference could be substituted with a reference to a Lawyer of suitable experience including length of call or date of admission".
Some respondents, however, expressed concern that simply replacing QCs with lawyers with a certain level of experience would not guarantee an advocate of the quality required, as is currently assured under the provision of a QC. The Faculty of Advocates considered that: "legislation might provide that an advocate who had been admitted for at least fifteen years was to be taken as a person duly qualified under such a contractual condition, but...length of time in practice is not equivalent to the awarding of the senior rank based upon the advocacy skills of the individual which have been displayed over a period and recognised by the court".
A significant number of respondents considered that guidance or legislation by the Government would be sufficient to resolve this issue. The City of London Law Society expressed the view that: "legislation would be necessary", and the Law Society considered that: "Government guidance, or possibly legislation, might be needed to lay out how contractual clauses should be construed in the absence of a body of QCs".
Some respondents considered that contractual difficulties would not easily be resolved, even through Government guidance or legislation. The Bar Council expressed concern that: "at present, we do not see how the matter could be dealt with by legislation. In any case, legislation would not deal with the case where the contract was governed by a foreign law". The Technology and Construction Bar Association considered that: "there are very considerable difficulties in legislation seeking to change contracts...There are two particular problems to which it has not been possible to suggest an answer. First, legislation that would be essential so as to stop contracts from being inoperable would interfere with freedom of contract. The landlord in the previous example has made his bargain on the basis that people of a particular rank will guarantee an obligation. He may or may not want them replaced by some different formulation. Second, the only feasible alternative would be to provide an alternative criterion by reference to age and seniority, (rather than a badge of quality) and this would be wholly unsatisfactory. It ought also to be remembered that stipulations for the involvement of English Queen's Counsel appear in contracts which are subject to foreign law, which would not be susceptible to domestic legislative change".
A number of respondents considered that any replacement rank or quality mark could be stipulated in place of the QC rank. The London Solicitors Litigation Association expressed the view that: "there may, in any event, be a new 'rank' developed if the professional bodies are allowed to point to their own senior members". The Equal Opportunities Commission considered that: "it should be sufficient to transpose, by way of legislation, the new quality mark where the use of Queen's Counsel is required for the purposes of contractual conditions. Greater consideration would have to be given to contracts with Queens Counsel clauses governed by foreign legislation".
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?
If you do not support these options, what other approach would you suggest and why?
Of the 219 respondents who answered Question 19, 28% favoured the revocation of all current appointments with immediate effect, 17% said that current appointments might continue as a purely honorific title, and 55% said that current appointments should continue indefinitely.
Of those respondents who favoured the first option, the majority expressed the view that to retain the QC title, even in a purely honorific sense, would confer an unfair advantage on those who currently hold the rank. The immediate revocation of current appointments, however, would ensure a level playing field and avoid distorting the market. The Law Society considered that: "to allow current QCs to continue to use the title would be unfair and discriminatory to those barristers who might have expected to apply as they try to progress their career. If the designation is retained for current holders they will enjoy a market advantage that might impact heavily on the next generation of barristers". The Discrimination Law Association expressed the view that: "if the QC system is not retained then the appointment should not be retained for the current QCs. To retain it would give an unfair advantage to current QCs who were promoted under a system now accepted to be outdated and unsatisfactory. If not abolished as a title, such QCs would retain that advantage throughout their careers. It would damage the reputation of the bar if an historical title could continue to confer advantage both in court and otherwise professionally at home and abroad". The OFT also considered that to allow existing title holders to continue to benefit from the title in the absence of potential competition from new appointments would lead to an even greater distortion of the market than currently exists. One member of the judiciary said that: "no other solution would allow barristers to have a level playing field and enable the public to make an unbiased choice".
Other respondents who favoured immediately revoking all current appointments considered it necessary to avoid misleading or confusing the public. The Law Society expressed concern over this, and another respondent, a practising barrister, said that: "the need for a lack of confusion in the eyes of the public necessitates this alternative". Another respondent, also a practising barrister, considered that: "customers will be confused if the rank appears to be abolished, but practitioners continue to mention its existence".
Relatively few respondents favoured the second option, namely continuing current appointments as purely honorific. The majority of those who did considered it to be merely the least objectionable and unfair. Many of these said, however, that it would be very difficult to ensure that the honorific title was not used for professional advantage.
Of the respondents who said that current appointments should continue indefinitely, a majority expressed the view that to revoke a title earned through considerable effort, sacrifice and personal expense would be unfair on current titleholders. The Association of Women Barristers said that: "The continuation of the status for life should be preserved so as not to unfairly deprive those awarded under the current system of an honorary title and status. The professional advantage is likely to continue but will lessen over time. One looks to the future not the past. Eminent QCs would become equally eminent lawyers under any new system, they should not be penalised by modernisation".
Other respondents considered this option to be suitable and considered that if the market is deemed suitably sophisticated to operate without a kite mark, then it should be able to overcome any confusion resulting from the presence of QCs, even after abolition of the rank. One respondent, a QC, said that: "if the market is sufficiently 'sophisticated' to do without a kite mark then there is no logic in saying that retaining letters patent will continue to secure any imagined advantage for the existing QCs". Some respondents considered this option the least objectionable and said that the alternative proposals would be very difficult, if not impossible, to enforce in practice.
Other respondents considered that this option was favourable because in a comparatively short time the number of advocates practising with the QC title would have diminished naturally, as occurred following the abolition of the Serjeants. One respondent expressed the view that: "history does not relate that when the rank of Sergeant [sic] ceased to be conferred but existing sergeants retained that rank, any particular confusion ensued...In the course of time, I would reckon not more than ten years, current appointments would become effectively honorific, and of little practical importance, whether or not an alternative system were put in place".
A few respondents expressed support for this option since it would give the government time to reconsider the decision to abolish the rank, in the event that it was found to be damaging or counter-productive, which they considered likely.
Some respondents expressed the view that none of these options was satisfactory. The Bar Council considered that: "the Consultation Paper rightly acknowledges all of these options present real problems. There is no ready answer to them" and the Commercial Bar Association considered that: "each option has its disadvantages. The matter should be further addressed in the event the Government does decide to abolish the QC rank". Some respondents who expressed this view considered that, given the problems presented by each of the options, the current system should be retained. The Criminal Bar Association expressed the view that: "there is no simple or satisfactory way of dealing with this issue. Those who have spent fifteen or twenty years working for and paying to be evaluated for promotion to the rank will seek, justifiably, to retain the mark of their achievement. It would seem iniquitous to remove it. Realistically and practically speaking, even with the best endeavours of all concerned, it will be impossible to destroy all memory, mention and evidence of the award from the public domain and this will inevitably distort the market, but decreasingly so, for fifteen to twenty years" and consequently considered that the rank should be retained.
A significant number of respondents considered that none of the options was suitable, and expressed the view that the Bar Council or Law Society should come up with a replacement rank (most suggested Senior Counsel) which should replace QC. Some of these suggested that all QCs should automatically be given the new title, while others said that it should co-exist with the QC title.
Of those respondents who suggested an alternative to the options provided in the consultation paper, the overwhelming majority expressed the view that an alternative system be introduced, with appointments made by the profession itself, and that any new rank (most respondents suggested Senior Counsel) be given automatically to existing QCs, or else be allowed to compete with the old QC rank.
Should the quality mark be granted only after, for example, examination or interview? Why?
Of the 186 respondents who answered this question, 74% said it should not be. Very few considered possibilities other than examination or interview.
The majority of respondents considered that it is not practical to include an examination or interview in the selection process for any quality mark, these being inappropriate means of assessing an advocate's advocacy skill. The Bar Council said that: "it is doubtful that examinations would add any value. The grant should be determined by sustained excellence in practice, which is not capable of test by examination. Whether interview would add any value, we doubt, although this may be something on which specialist views could be sought". The Chancery Bar Association did not consider that: "examination or interview would provide an accurate means of identifying the best advocates in the profession. If the qualification is excellence in advocacy, it is difficult to see how such a skill could be identified by examination or interview or how either (or both) processes would serve the purpose of identifying those whose excellence merits the award". The Personal Injury Bar Association also expressed doubt that an examination could: "provide a practical method of assessing an advocate's ability", and further did not consider that: "an expensive process of interviews would add much value".
Many other respondents also expressed concern about the cost of including an examination or interview in the selection process for any quality mark, and considered the expense to be prohibitive or unwarranted. The Bar Council said that any benefits derived from the inclusion of an examination or interview in the process: "would not be sufficient to justify the substantial hike in the time and expense involved". Similarly the Institute of Legal Executives expressed concern that: "They are elaborate and expensive to implement", while the London Common Law and Bar Association considered that: "performance at interview is notoriously variable and the insistence on interview would be expensive. The Association is not persuaded that it would benefit the system".
Some respondents did not consider that an examination was necessary or justified, but expressed support for the possible inclusion of an interview in the selection process. The Environmental Law Foundation expressed support for: "such reforms that will ma