Taking Silk: An Empirical Study of the Award of Queen's Counsel Status 1981–2015

Published date01 November 2015
DOIhttp://doi.org/10.1111/1468-2230.12157
Date01 November 2015
Taking Silk: An Empirical Study of the Award of Queen’s
Counsel Status 1981–2015
Michael Blackwell*
This article considers which junior barristers are appointed to the rank of Queen’s Counsel. The
criticisms of the old appointments system are discussed and statistical methods are used to assess
whether the changes to the QC appointments system introduced in 2004 improved the prospects
of appointment for groups, such as women, that were disadvantaged by the previous system. The
results show that under the reformed system groups that were historically less likely to be
appointed QCs, such as women, continue to be so. However it is discussed how this may (partly)
be attributable to lower rates of application, rather than unfair discrimination among applicants.
INTRODUCTION
Who holds the status of Queen’s Counsel (QC; or silk) is of general public
importance for three reasons. First, the overwhelming majority of High Court
judges are appointed from the pool of practising Queen’s Counsel.1Thus
fewer women becoming QCs effectively impedes progress towards greater
judicial diversity: and in doing so brings into question the legitimacy of the
judiciary.2Secondly, the status is justified as a ‘kitemark’ of quality for the
consumers of legal services,3so if it is awarded on the basis of factors that are
irrelevant to ability as a lawyer (such as gender) then this undermines the stated
reason for its continued existence. Finally, who gets to become a QC is also
important to individual barristers. The award of the status causes an immediate
step-change in the level of fees4that they charge and generally (historically at
*Assistant Professor, London School of Economics & Political Science. Unless otherwise stated all
URLs were last accessed on 20 March 2015. My thanks to the three anonymous reviewers for their
comments on an earlier draft of this paper. My thanks also to Linda Mulcahy and Jouni Kuha for their
comments on still earlier drafts. This work was supported by the Economic and Social Research
Council [grant number ES/H013261/1].
1 ‘. . . of the 386 judges appointed to the High Court since 1965 only 31 have not been Queen’s
Counsel prior to their appointment – of those eight (all men) were junior counsel to the Crown
who may not have wanted silk due to the associated loss of lucrative work and 19 (three women)
were existing members of the judiciary’: M. Blackwell, ‘Old Boys’ Networks, Family Connec-
tions and the English Legal Profession’ [2012] PL 426.
2 B. Hale, ‘Equality and the Judiciary: why should we want more women judges?’ [2001] PL 489,
502.
3 Written Statement of the Lord Chancellor (Lord Falconer of Thoroton) announcing the decision
to retain the rank of Queens Counsel: HC Deb vol 661 WS54 26 May 2004.
4 For example, see the reference to the ‘automatic uplift of fees when a person was appointed a QC’
in The Law Society, ‘Response to the consultation paper on ‘Constitutional reform: the future
of Queen’s Counsel’ (Department of Constitutional Affairs, 2003) at http://webarchive
.nationalarchives.gov.uk/20040105065916/http://www.dca.gov.uk/consult/qcfuture/responses/
qc312.pdf.
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© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited. (2015) 78(6) MLR 971–1003
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
least) resulted in a change of work towards advocacy rather than paperwork.5
The importance to individual barristers is similar to some of the arguments of
equity/equal opportunities6used in the context of judicial diversity: ie that
‘individuals should not be unfairly advantaged by factors that do not relate to
their capacity to undertake a particular role’.7However, other arguments used
in the context of judicial diversity, such as ‘democratic legitimacy’ are not
relevant (save to the extent that discrimination feeds into judicial appoint-
ments), as QCs are not (unlike judges) exercising power and so not ‘engaged
in politics as widely defined.’8
There was a radical change to the appointments process for QCs in 2004,
when an independent appointments panel was established. This replaced the
earlier much criticised system where QCs were appointed on the advice of the
Lord Chancellor, after he took confidential soundings from judges and senior
barristers. Criticisms of the earlier appointments system, discussed further below,
were both that it lacked transparency and that it discriminated against groups
including women, barristers who practised outside London and ethnic minor-
ities. The reformed system has strong similarities to the reforms that took place
at around the same time to judicial appointments: moving from ‘secret sound-
ings’ to the establishment of an independent appointments commission and clear
criteria for appointment.
This paper uses a statistical model to assess if some of these criticisms of the
earlier system with regard to who was appointed were well founded, and to see
if the new appointments system altered things. The model analyses a dataset,
assembled by the author, of the membership of 138 barristers’ chambers (other-
wise known as sets) between 1981 and 2011. In total the dataset contains 11,453
different barristers. The model considers how attributes of barristers (such as
gender, length of call and educational background) and characteristics of the
chambers from which they practise (such as the area of legal specialisation) are
associated with the likelihood of a member of one of those sets being appointed
as a QC. This research shows that, post-reform, women and non-Oxbridge
educated barristers continue to be less likely than other barristers in the same set
and of equivalent call to become QCs.
This is the first academic study of the reformed QC appointments system.
Indeed, whilst there has been recent large-scale research into the effects of
diversity on the career progression of pupil barristers,9there have been no
previous longitudinal quantitative studies of career progression among qualified
5Royal Commission on Legal Services Report Cmnd 7648 (1979) vol 1 para 33.72; Director General
of Fair Trading, Competition in Professions (London: OFT, 2001) para 274.
6 For example, Hale, n 2 above 489–496; K. Malleson, ‘Justifying Gender Equality on the Bench:
Why Difference Won’t Do’ (2003) 11 Feminist Legal Studies 1.
7 Malleson, ibid, 17.
8ibid, 18.
9 A. Zimdars, ‘The Competition for Pupillages at the Bar of England and Wales (2000–2004)’
(2011) 28 JLS 575; A. Zimdars, ‘The Profile of Pupil Barristers at the Bar of England and Wales
– 2004–2008’ (2010) 17 International Journal of the Legal Profession 117.
Taking Silk
© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited.
972 (2015) 78(6) MLR 971–1003
barristers.10 Most previous empirical research on the English Bar has been based
on limited surveys, such as the Bar Barometer, which provide aggregate data at one
moment in time. As noted in Appendix 7 (Data for Future Statistical Analysis of
Entry to the Bar) to Lord Neuberger’s Entry to the Bar Working Party: Final
Report,11 very limited inferences can be made from such data, in sharp contrast to
the inferences that can be made from longitudinal data. Further, although annual
statistics are published by the QC Appointments Panel, those statistics only
enable bivariate analysis of success rates of applicants by gender – whilst this
article both allows a multivariate analysis as well as additional insight by looking
at the pool of potential applicants. The most thorough previous study of QC
appointments was that of Malleson and Banda,12 but that study is now dated as
it took place before the reforms to the appointment process. Also that study,
which was based on a survey and follow-up interviews, considered barristers’
subjective perceptions of the appointments process. In contrast this research
considers who actually is appointed from the pool of potential barristers. A
further advantage of this research is that the dataset was assembled by compiling
publicly available data. Accordingly the research underpinning this article did not
require the cooperation of Bar regulators, so is not subject to restrictions on
access or how analyses may be broken down.13 This is especially valuable in
relation to the Bar, where there appears to be more reticence to engage with the
requirement14 to publish workforce diversity data than with regard to solicitors.15
10 Part of a longitudinal study commissioned by the Law Society surveyed half of an entire cohort
of law students, following them over a six-year period, and so contained some important analysis
of pupillage applications. However the focus of these reports was on solicitors and it did not
include a quantitative multivariate analysis of the barristers after the completion of pupillage,
largely it seems because of the small number in the sample, and regrettably the sections on the Bar
disappear after the fourth year of the study when this data would have been most available: M.
Shiner, Entry into the legal professions: the Law student cohort study year 4 Research Study 25 (London:
Law Society, 1997) 134.
11 D. Neuberger, Entry to the Bar Working Party Final Report (General Council of the Bar, 2007).
12 K. Malleson and F. Banda, Factors Af fecting the Decision to Apply for Silk and Judicial Office (Lord
Chancellor’s Department Research Series, 2000).
13 For an example of how Inns of Court and the Bar Council may restrict access and use of data, see
Zimdars, ‘The Competition for Pupillages at the Bar of England and Wales (2000–2004)’, n 9 above.
14 Legal Services Board, Increasing diversity and social mobility in the legal workforce: transparency and
evidence: LSB response document & accompanying statutory guidance issued under Section 162 of the Legal
Services Act 2007 (2011).
15 Many chambers have not published such data, and of those who have, some have done so in a way
that is unhelpful: for example only reporting the combined values for clerks and barristers. The
instances of non-publication may be attributable to the carve-out under which the BSB do not
require publication where ‘[t]he number of individuals identified with any characteristic within
any category is fewer than 10 (ten), save in cases where there is consent from all those to whom
the data in question relates.’: Bar Standards Board, Guidance on the Bar Standards Board’s Diversity
Data Collection Rules (2012) para 1.4. The justification for this, as a data protection requirement,
may be questioned. In contrast the Solicitors Regulation Authority has not thought it necessary
but just refers firms to the Information Commissioner’s guidance: Information Commissioner’s
Office (ICO), Anonymisation: managing data protection risk code of practice (2012). The ICO guidance
only suggests the fewer than 10 rule in the context of the release of entire datasets: ibid, 77. This
can be contrasted to the publication of workforce diversity data by chambers, where only
aggregate data is made available, which presents far fewer risks: ibid, 52. It should be remembered
that the statutory test looks at whether it is likely that individuals would be identified, not whether
it is possible that they might: ibid, 16.
Michael Blackwell
© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited. 973(2015) 78(6) MLR 971–1003

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