THE NEW SILK SELECTION SYSTEM
An article was published recently in The Times which started with the phrase
"the notorious system of appointing Queen's Counsel through secret soundings".
Although I agree that many of the Bar's traditional systems and notions need
overhauling, I do wonder whether the system was really so flawed in its concept,
as distinct from the way it was operated in practice.
It is common in business recruitment for head-hunters to try to find a suitable
candidate, or shortlist of people, to fill a specific vacancy. When they do so,
they are likely to rely on their own knowledge and research, and also on the acquisition
of information from others who are well-placed to know that person's true qualities.
Or, to put it in the way which has been levelled at the QC system, they will rely
on "secret sounding".
Apart from that common system of head-hunting, it is axiomatic that, if you can
find someone to fill a vacancy who is known to existing members of an organisation,
it should be worthwhile to seek their opinions. If people, whose judgment you
can trust, give a good reference to someone whom they have had the opportunity
to assess over a suitably long period of time, that is possibly the best method
of selection.
Surprisingly, that is the theory behind the old system of selecting QCs.
Turning to the new system, there are some features which may help to produce the
best candidates. The selection of new QC s has been placed in the hands of an
independent selection panel, which will include "appreciable"non-lawyer
membership. This could work both ways; on the one hand, under the old system,
good judges and barristers ought to know better than anyone else what are the
qualities which make an outstanding advocate. On the other hand, however, they
may well need the help of outsiders to allow them to see that some of the current
procedures are out-dated, and open to bias and misuse.
The new panel will include one "judicial member", although references
are to be taken from members of the judiciary before whom the candidate has appeared
in substantial or difficult cases. That should be invaluable, because judges at
a high level should be capable of recognising outstanding advocacy.
One particular inclusion in the interview process is an expert in human resources
and equal opportunities. This is of great interest, because progressive chambers
have realised for some time that their selection processes require the intervention
of such experts. The era of the casual chat has long gone, and good chambers are
now finding that expertise in selection has become essential. It surely will not
be long before all good chambers are using top quality recruitment and selection
practices. If we do, it must follow that selection for silk (and judicial office
incidentally!) should be equally careful.
Similarly, references will be sought from names given by the applicant, including
those whom he/she has led or been led by, instructing solicitors, and, where appropriate,
clients. Of course, the complaint might be made that the applicant should not
be allowed to select his or her own references, but one of the most substantial
complaints against the old system was that barristers of merit might not be able
to draw their good qualities to the attention of those responsible for selection.
It is apparently envisaged that some of the referees will themselves be interviewed.
Another potentially interesting improvement is the provision for publication of
information about the broad fields of law in which the candidate has demonstrated
excellence as an advocate. Many barristers are highly specialised, but in some
areas of the law (such as the one I work in, personal injury) specialisation is
not demanded. It is common experience that specialisation breeds a high standard
of knowledge and competence, usually, and therefore this new requirement may be
a significant forward step.
Two new additions to the system, taken together, may also have a major impact;
independent audit of the process, coupled with a complaints procedure for unsuccessful
candidates. There are many good barristers who have applied for silk in the past,
and been refused for several years, who have had no way of finding out why they
have been rejected, when others, possibly inferior, have succeeded.
BILL BRAITHWAITE QC
This article appeared in The Lawyer, 24 January 2005