Ladies and Gentlemen, let me welcome you all to the Royal Gallery: those of you taking Silk today and also your guests - family, friends, clerks and others - who have supported you through the years of hard work and achievement which have culminated in this award. Let me also welcome Sir Colin Campbell and Sir Duncan Nichol from the Commission for Judicial Appointments.
Today we are here to celebrate your awards and formally confer on you the rank of Queen's Counsel.
First I single out the three new Queen's Counsel, honoris causa, if the Lord Chief Justice will permit my momentary lapse into Latin. Honorary Silk is a rare honour for lawyers who have made a major contribution to the law of England and Wales, outside practice in the Courts. John Spencer is a Professor of Law at the University of Cambridge and a Fellow of Selwyn College. He has achieved distinction in the fields of criminal law, procedure and evidence, tort and contract, comparative law, and medical law; and has made an outstanding contribution to judicial training through his work with the Judicial Studies Board. John Bell is also a Professor of Law at Cambridge. He is noted for his distinguished academic contribution in the fields of comparative, public and European Law; and in particular his contribution to our understanding of French law. Finally, Andrew Burrows is Norton Rose Professor of Commercial and Financial Law and a Fellow of St Hugh's College at Oxford. His main achievements are in the fields of tort, contract, restitution, and commercial law; and he has achieved high distinction as a Law Commissioner.
Next, let me turn to the practitioners. Your prize has been hard won. It takes perseverance, sacrifice and high ability to achieve the level of success and recognition that merits the award of Silk. Your award is a reflection of the esteem in which you are held by the legal community as a whole: by Judges and, just as importantly, by your peers.
Let me now turn to what the future may hold. The debate over the meaning, status and operation of the Silk system has continued for a long time and certainly since I took Silk in 1978. That debate is now coming to a head. As I announced to the new Lord Chancellor's Department Select Committee earlier this month, I intend to publish, before the Summer, a Consultation Paper in which the principal issue will be whether the status of Queen's Counsel should continue to exist.
Today I will set out the background to my decision and the arguments I will need to weigh. But, first, let me stress this: the consultation exercise will be about ensuring that the structure and operation of our legal system meets the needs of the public. The possibility of future changes to the system in no way detracts from your achievements which we celebrate today. Advocacy is an art, upon which the effectiveness of our legal system depends. Successful advocacy has as its backbone the most thorough preparation: Longfellow's "toiling ever upwards in the night". But more than that, it requires a creative mind; the judgement to discern the good points from the bad or mediocre; the courage to act on that judgment; and a mastery of language and persuasive technique. All of you here have allied these skills to a first class knowledge of the law and have gained a professional standing that marks you out as leaders in your fields.
And you have come through a selection process that I believe is as rigorous, transparent and fair as it has ever been. Since 1997 my Department has made year on year improvements to the Silk selection process. For example:
We have clarified the appointment criteria, revised the guide for consultees and modified the consultee assessment form with the aim of ensuring that consultees' assessments of applicants are fully particularised and relevant to the criteria; and to make clear that unparticularised or irrelevant comments must be disregarded.
We have increased resources for the sift stage and introduced three independent assessors to scrutinise, with my officials - who are impartial civil servants - the extent to which the evidence received about applicants demonstrates that they met the criteria.
And, since 2001, the Commissioners for Judicial Appointments have had access to every piece of paper, every assessment and every opinion available to me. They have sat in on discussions between my officials and the independent assessors. And they have attended the meetings which I have with the Heads of Division where we consider, case by case - wherever I or the Heads of Division wish to revise the proposed grading - whether officials' individual recommendations, for appointment to Silk, are right or wrong and so need to be changed upwards or downwards on the basis of the evidence and criteria.
So, we have made the selection process better focussed, with scrutiny hugely enhanced. But still the issues are: first, is the system objectively in the public interest?; and second, does it command public confidence?
At the 2001 Silk Ceremony I mentioned the Director General of Fair Trading's Report on Competition in the Professions. In that Report he asked questions of the Silk system. Was a quality mark necessary at all in a largely referral profession? And, if it was, should it be conferred by the State, rather than by the profession? Last July, in response, the Government published a Consultation Paper entitled In the Public Interest? which sought views on the system, including its perceived benefits and potential drawbacks. I will publish a summary of the responses shortly. Although that Consultation Paper did not ask whether the Silk system should be retained, some of the responses touched on that fundamental issue. That is the issue this Summer's Consultation Paper will address.
Let me set out some of the main arguments.
First, do we even need a quality mark for the legal professions? The principal arguments in favour of the current system are:
But there are opposing arguments. Many see the market in legal advocacy as highly developed. They are not convinced that solicitors need a broad, state conferred, quality mark to help them decide who to instruct. Solicitors know, individually and collectively, who are the experts in their area of practice. And even if there were any doubt, the market now provides a range of reference books and web sites - focussed and regularly updated - which solicitors, and perhaps in the future members of the public, can use.
In addition, many assert that the rank of Silk drives up legal costs unjustifiably. And it is also argued that the system reduces rather than increases choice in the legal market by discouraging the use of highly competent junior counsel who have not been awarded Silk. Some of you here today may have sympathy with that view.
It may be that it is for those who are not prepared to trust the market, to substantiate their case.
But, if there is to be a quality mark, the first question must be whether it should be granted by the State and in the form of a rank conferred by Her Majesty. The consultation last year produced a degree of support for the proposition that a quality mark should be independent of Government; and that awards of a quality mark should be made either by the professions themselves or through an independent body. If the view prevails that a quality mark should still be awarded, but independently of Government, then the State should stand aside and the grant of a quality mark would become an issue for the professions alone: the rank of Queen's Counsel would therefore go.
The question I must resolve is whether the award of a quality mark is of such central importance to the effective operation of our legal system that it should continue to be made by the State. If no, then the professions - barristers and solicitors - may choose to leave an informed market to select the legal horses for particular courses, or establish their own quality mark for lawyers, to be granted by them and not the State. That would be a matter for the professions, for whom the challenge would be to emulate, for example, the medical profession and establish a quality mark, granted by the profession, in which the public would have confidence. Any notion that the role of recommending the conferment of the title Q.C. - or any other title - to the Queen could be passed from the State to a profession, is misplaced.
Whatever form any future system may take, last year's consultation showed that there remain important ancillary issues to be resolved. A number of the respondents questioned whether an undifferentiated, lifetime award, depending largely on adversarial performance in court, meets current need. For example:
whether new criteria are needed to reflect the greater diversity of skills that are required to conduct modern litigation;
whether a quality mark should be judged by some objective test and / or formal examination, backed up by interview, consistent with objective criteria;
whether the quality mark should expressly identify the specialism for which it had been awarded; and
whether there should be a system of re-accreditation or re-examination for those who wished to retain the status, so that the award remains an up-to-date assurance of quality and not a once and for all award.
I have reached no conclusions on these or the more fundamental questions on the continuation of the Silk system. Neither is it clear whether the views that have so far been expressed reflect all of the possible options. It is clear, however, that there is an appetite for change among many. There is, as ever, less consensus on what the nature of change should be.
In the coming weeks I shall consider very carefully all the arguments. The Consultation Paper before the Summer will then set out the various options for reform. Meanwhile, I have decided to postpone any 2004 Silk competition until the consultation exercise is complete. If Silk remains, the 2004 competition will take place later in the year than it otherwise would. And, if Silk goes, that would make you the last in an illustrious line of leading counsel recognised by the State as leaders of the profession.
But, for now, let us celebrate your achievements. I am sure that in the years ahead you will fully justify the confidence, belief and support which so many have shown in you. I can assure you I will follow your future careers with great interest. I warmly congratulate you all.