I recently became a silk. I took part in the ceremony in Westminster Hall when new Queen’s Counsel declare their readiness to serve Her Majesty and receive from the Lord Chancellor her “letters patent” – an archaically worded document bearing a large royal seal and encased in a scarlet leather pouch. The setting evokes the continuity of the English legal tradition and the antiquity of its institutions. It was the scene of the trial of Charles the First and until 1875 of the Court of Queen’s Bench. The Lord Chancellor – Ken Clarke, heavily disguised in full-bottomed wig and a richly embroidered dressing gown – arrived in procession preceded by a mace bearer.
My appointment is merely honorary – awarded for services to the law outside the courtroom. It does not give me the right to practise as a silk. I would have to become a solicitor-advocate and then a “regular” silk before appearing in the higher courts. The honoraries, of whom on this occasion there were six – three barristers and three solicitors – are treated differently in other ways too. They do not wear wigs or the silk gown and stockings demanded of the regular silks. They are not invited to the Lord Chancellor’s breakfast and they do not make the traditional round of the courts to show off their new status to the judges. Honorary silk has the advantage of being free of charge. To be a practising silk you have to pay a fee of £1900 when you apply and if you are successful a further £3500 – plus VAT in both cases.
And the practitioner also has the expense of the fancy dress. An enterprising tailor – evidently unaware that I needed only to hire a morning coat for the day from Moss Bros - sent me a glossy leaflet offering to supply the whole ceremonial outfit for a mere £5000. And that did not include the wig. However, those who are selected will expect to be repaid many times over by the higher fees their clients will pay them.
I am unhappy about a system which is heavily weighted against solicitors. They were completely excluded from it until they secured the right to become advocates in the higher courts. Now solicitor-advocates can become practising QCs and a small number have done so – only 2 out of 120 appointed in the latest batch of new silks. Solicitor silks, like solicitor advocates generally, are still seen by the Bar as an aberration. Silk is regarded as primarily a perk of the Bar.
The significance attached to “Silk” by the Bar will be apparent to any member of the public who saw the recent TV sitcom of that name. New silks are heaped with congratulations by their colleagues. Chambers throw celebratory parties and advertise their successful applicants in the legal press. I too received a shoal of letters from my barrister friends, all generously intended. One contemporary could not resist pointing out that he had been a silk for 30 years. Another, much younger, but a silk for many years, expressed ironic pleasure at being my senior.
My main objection to the silk system is its glorification of advocacy. Apart from the handful of honoraries, only those who practise – to quote the official website – “oral and written advocacy before the higher courts, arbitrations and tribunals and equivalent bodies” are eligible. Practising the law in any other way – in the solicitor’s traditional role of using his skill and experience to advise, research and prepare cases, and find extra-judicial solutions to the client’s problems – is deemed an inadequate qualification.
This has become somewhat paradoxical when lawyers are urged to avoid going to court whenever possible by embracing conciliation and mediation. It would be more consistent to award silk to the best negotiators and deny it to those who end up in court. The provision of legal services is about to be opened up to non-lawyers and to commercial investors. Yet the narrowly based legal elite of QCs, steeped in mediaeval ritual, is encouraged to maintain its restrictive practices.
In his customary address to the new silks, the Lord Chancellor derided the unsuccessful attempt of his predecessor Lord Irvine to abolish Queen’s Counsel and committed himself to their preservation. The Bar will welcome his support at a time when it is struggling desperately to maintain its independence.
The Bar evidently wants to maintain its dominance of the silk system but making advocacy the test is problematic. Advocacy skills are hard to define and to distinguish from those required of the competent lawyer who does not get on his feet in the higher courts. The QC Selection Panel demonstrates this in its guidance to applicants for silk. Its criteria for selection include “ expert, up-to-date legal knowledge; productive working relationships with all, including professional and lay clients, the judge and other parties’ representatives; demonstrating an understanding of diversity and cultural issues” and “honesty and straightforwardness in professional dealings”. But these qualities are certainly not the preserve of advocates. The only other criterion apart from these is an attempt to describe advocacy skills. The applicant is required to be able to develop and advance the client’s case “by gaining a rapid incisive overview of complex material, identifying the best course of action, communicating the case persuasively and rapidly assimilating the implications of new evidence”, etc. These again are the abilities of any good lawyer outside as well as inside the judicial arena.
Specialist qualifications for lawyers are valuable but Silk is not it. Some silks are a genuine elite. Prestige and high earnings have recruited to their ranks some of the ablest people in our society. They have enhanced the standing of our profession and of the rule of law. But the link to the Queen is a sham and the QC label elevates one class of lawyers arbitrarily. Derry Irvine was right.
A version of this article is published in the New Law Journal.