4.1 Queen's Counsel (sometimes known as 'Silks') are appointed by The Queen on the recommendation of the Lord Chancellor. The rank of Queen's Counsel is essentially a mark of distinction as an advocate. Traditionally, new Queen's Counsel are announced on Maundy Thursday and are appointed on the first day of the Easter Legal Term.
4.2 The Lord Chancellor is accountable to Parliament for the processes leading to the appointment of Queen's Counsel. The Lord Chancellor's aim is to have available to him the best advice based on the views, fairly and frankly expressed and efficiently and accurately gathered, of those he consults for assessments; and to ensure that individual applicants are treated equally, on their own merits alone. Selection procedures are reviewed each year with a view to continuing improvements in accountability, openness and fairness. This process has been greatly assisted this year by the Commission for Judicial Appointments' investigation of three complaints relating to the Silk 2001 round which identified areas for immediate action (see paragraph 4.12 below).
4.3 Applicants are required to pay an application fee to cover the costs of the competition. This was introduced following the Access to Justice Act 1999 in order to remove the element of public subsidy which had previously existed. The fee was initially set at £335 and it was announced that it would be reviewed after three years. For the 2003 competition the fee has been increased to £720, following a review of the costs to the Lord Chancellor's Department of administering the appointment process. The new fee is intended to achieve full cost recovery.
4.4 To be eligible for appointment as Queen's Counsel an applicant:
a) must be an advocate (barrister or solicitor) who has, and is entitled to exercise, full rights of audience in the High Court or the Crown Court;
b) should appear regularly before the courts of England and Wales or equivalent fora or the European Court of Justice or the International Court of Justice or the European Court of Human Rights;
c) must be a British subject, Commonwealth citizen or citizen of a member state of the European Union.
Selection Criteria
4.5 The Lord Chancellor only recommends for appointment as Queen's Counsel those practitioners, regardless of gender, ethnic origin, sexual orientation, marital status, political affiliation, religion, disability or professional background, who display the following attributes to a degree which marks them out as leaders of the profession, that is to a standard comparable to those appointed Queen's Counsel in the same or analogous practice type:
Outstanding ability as an advocate, to a standard to be expected of Queen's Counsel in the applicant's field of practice.
a) sound intellectual ability and a thorough, comprehensive and up to date knowledge of law and procedures in the applicant's field of practice; and
b) a large and high quality practice based on demanding cases.
a) integrity, having:
a history of honesty, discretion and plain-dealing with professional colleagues, lay and professional clients and the courts; independence of mind and moral courage; and the trust and confidence of others;
b) professional standing, having:
the respect of the Bench and of the profession in observing the advocate's duty to the Court and to the administration of justice, while presenting their client's case; and being formidable, fair and honourable as an opponent;
c) maturity of judgement and balance.
4.6 In order to assess whether an applicant fulfils these criteria to the required level of distinction, the Lord Chancellor consults widely among the judiciary and the legal profession. Applicants are also invited to name between three and six nominated consultees who do not already feature on the list of automatic consultees. In 2001/2002 the Lord Chancellor consulted over 1,600 individuals and organisations, and received over 4,150 comments on the applicants.
4.7 To ensure that consultees use a consistent basis for their assessment of applicants, all consultees are provided with a Guide for Consultees. In order to focus their views on the applicants, a classification system is used. This is in addition to providing substantive comments on each individual. For appointments in 2001/2002 the following classification system was used:
A+ - Recommended for appointment: fulfils all of the criteria to an exceptional degree which marks the applicant out as a leader of the profession. The applicant has demonstrated the potential to rise to a distinguished level within the ranks of Queen's Counsel.
A - Recommended for appointment: fulfils all of the criteria to an exceptional degree which marks the applicant out as a leader of the profession.
B - Not recommended for appointment: fulfils all of the criteria, but not to a degree which marks the applicant out as a leader of the profession.
C - Not recommended for appointment: fulfils some, but not all, of the criteria.
D - Not recommended: does not fulfil the criteria.
The assessment form for consultees included information about the criteria and sought insight into how the consultee had formed his or her views. Sufficient space was also made available for consultees to record their comments.
4.8 The guide for applicants for the 2001/2002 competition clarified the way in which the self-assessment section of the application form might be used. The self-assessment provides an opportunity for applicants to "make their case" for appointment, and it enables those who may not be visible to the consultation community, despite the quality of their practice, to explain the reasons why; for example, they practice in a specialist or narrow field or geographic area.
4.9 Of the 429 applicants in 2001/2002, 113 were successful. For detailed statistics, including comparisons with previous years, see the table below. A press notice, published by the Department at the time new Queen's Counsel were announced, provided a full list of those who were appointed.
4.10 Unsuccessful Queen's Counsel applicants are encouraged to receive feedback on their applications from senior officials in Judicial Group. Feedback provides an opportunity for the applicant to learn of the results of consultation on their application and whether there were any particular matters which may have contributed to their lack of success and to discuss any concerns they may have about the appointments process. Applicants will be told the classifications they received and what comments have been made about them, keeping as closely as possible to the actual words used. Some editing may, however, be necessary, since as with most appointment systems the source of comments is not disclosed.
4.11 In the 2000/2001 competition 207 of the 379 unsuccessful applicants requested and were given feedback (192 by appointment on the telephone and 15 in person). In the 2001/2002 competition 316 applicants were unsuccessful. As at 11 September 2002, 190 had requested feedback, of which 186 had already taken place (12 in person).
4.12 As noted above the Commissioner for Judicial Appointments was asked by three unsuccessful candidates for Silk in 2001 to investigate the treatment of their applications. The results of the investigation, which have been accepted by the Lord Chancellor, are set out in the Commission's annual report. A number of steps have already been taken to address the shortcomings identified. The staff resources devoted to the process have been increased, the sift panels making recommendations for the "long list" to be put to the Lord Chancellor will include independent assessors as is the practice for judicial appointments, the Guides for applicants and consultees have been revised to explain the process and criteria more fully and the need for comments to be as fully particularised as possible, clearly based on recent evidence and specifically related to the selection criteria. To meet concerns that less visible applicants may not receive the support they merit, applicants will be invited to identify up to six of those "automatic" consultees best placed to comment on their suitability who will then be encouraged to provide an assessment.
Office of Fair Trading Report
4.13 In March 2001, the Director General of Fair Trading, in his report on Competition in the Professions (OFT Report) considered the Queen's Counsel system. Following responses from the Law Society and the Bar Council to the report the Lord Chancellor's Department issued a consultation paper in July 2002. We will outline the results of this consultation exercise in next year's Annual Report.
Honorary Queen's Counsel
4.14 Separately, the Lord Chancellor recommends to The Queen the award of Queen's Counsel honoris causa ("honorary Queen's Counsel" or "honorary Silk") to those who have made an exceptionally distinguished contribution to the law in England and Wales or the Commonwealth outside the field of advocacy. Those considered for the award include academic lawyers, lawyers in the public service and employed lawyers. This year the Lord Chancellor recommended the award to Professor Hugh Beale, Sir Edward Caldwell KCB, Professor Reginald Dias and Professor William Twining FBA.
4.15 The following table gives statistical information about this and previous years' competitions. A full breakdown of applicants from this year's competition, including by age and length of practice, is in Annex H (Table 56).
| 1993 | 1994 | 1995 | 1996 | 1997 | 1998 | 1999 | 2000 | 2001 | 2002 | |
| Number of Applicants | ||||||||||
| Total Applicants | 472 | 539 | 492 | 488 | 500 | 511 | 553 | 506 | 456 | 429 |
| Total Awards (excl. Honorary QC) | 70 | 77 | 71 | 66 | 68 | 60 | 69 | 78 | 77 | 113 |
| Male Applicants | ||||||||||
| Applicants | 435 | 496 | 450 | 448 | 459 | 465 | 504 | 453 | 405 | 385 |
| Awards | 64 | 68 | 63 | 62 | 63 | 50 | 60 | 68 | 67 | 101 |
| Female Applicants | ||||||||||
| Applicants | 37 | 43 | 42 | 40 | 41 | 46 | 49 | 53 | 51 | 44 |
| Awards | 6 | 9 | 8 | 4 | 5 | 10 | 9 | 10 | 10 | 12 |
| Minority Ethnic Applicants | ||||||||||
| Applicants | 14 | 11 | 12 | 14 | 12 | 18 | 30 | 24 | 19 | 19 |
| Awards | 1 | 1 | 1 | 1 | 1 | 4 | 5 | 3 | 3 | 7 |
| Solicitor Applicants | ||||||||||
| Applicants | 5 | 6 | 7 | 9 | 6 | 12 | 8 | |||
| Awards | 0 | 2 | 1 | 1 | 0 | 1 | 2 |
| 1993 | 1994 | 1995 | 1996 | 1997 | 1998 | 1999 | 2000 | 2001 | 2002 | |
| Percentage of Applicants granted QC | ||||||||||
| Total | 14.8 | 14.3 | 14.4 | 13.5 | 13.6 | 11.7 | 12.5 | 15.4 | 16.9 | 26.3 |
| Male | 14.7 | 13.7 | 14.0 | 13.8 | 13.7 | 10.8 | 11.9 | 15.0 | 16.5 | 26.2 |
| Female | 16.2 | 20.9 | 19.0 | 10.0 | 12.2 | 21.7 | 18.4 | 18.9 | 19.6 | 27.2 |
| Non-Minority Ethnic1 | 15.1 | 14.4 | 14.6 | 13.7 | 13.7 | 11.4 | 12.2 | 15.6 | 16.9 | 25.8 |
| Minority Ethnic2 | 7.1 | 9.1 | 8.3 | 7.1 | 8.3 | 22.2 | 16.7 | 12.5 | 15.8 | 36.8 |
| Solicitors | 0 | 33.3 | 14.3 | 11.1 | 0 | 8.3 | 25.0 | |||
| No. of Honorary Silk awards | 7 | 4 | 3 | 6 | 8 | 3 | 3 | 4 | 2 | 4 |
4.16 The table shows that, since 1998, the proportion of women applicants who were successful has been greater than the proportion of male applicants who were successful as follows:
However, the proportion of women applying for Queen's Counsel has been low compared to the proportion of women in the profession with the relevant level of experience. For example, in 2002 the average years in practice of those who applied was 22 years. The figures given in Chapter 1 show that of barristers between 15 and 29 years call 19.2% are women and of solicitors between 10 and 29 years admission (no figures available for between 15 and 29 years) 25.3% are women. But in 2002 only 44 women applied for Silk (10.25%) compared to 385 (89.75%) men.
Earnings
4.17 Following a recommendation made by Sir Leonard Peach, a table of average earnings is published at the time new Queen's Counsel are announced. Applicants are asked to state in the application form their earnings for each of the previous three completed financial years. The average of the three earnings figures is calculated for each applicant and the averages are analysed. The figures for 2001/2002 are reproduced below. This is the third year in which the table has been produced.
|
|
All applicants | Unsuccessful applicants |
Successful applicants |
| Maximum | £705,000 | £683,780 | £705,000 |
| 3rd quartile | £254,357 | £219,565 | £339,667 |
| 2nd quartile | £178,690 | £165,500 | £244,333 |
| 1st quartile | £130,333 | £122,333 | £183,092 |
| Minimum | £ 46,000 | £ 46,000 | £ 63,667 |
| Average | £206,402 | £184,129 | £268,688 |
4.18 Although the Lord Chancellor regards the level of an applicant's fees as an indication of the size of an applicant's practice, it is not his policy to recommend the award of Queen's Counsel solely to the highest earning applicants. Nor is there a minimum threshold of earnings below which an application is ruled out. Provided that it is clear from the level of fees and from the other information provided on the application form that an applicant is in active practice, it is the evidence of his or her ability and the strength of support that determines the final decision.
1 This includes those who have not stated their ethnic origin.
2 Those who have stated that they are of minority ethnic
origin in response to a questionnaire.