Male Oxbridge-educated junior barristers from London-based chambers are still far more likely to become QCs despite major reform to the appointments system in 2004, according to a new study by the London School of Economics and Political Science (LSE).
The research, by Michael Blackwell, Assistant Professor of Law, concludes that the 2004 reforms, designed to make the process fairer and more transparent, appear to have failed in improving diversity. Women are still less likely to be appointed than their male equivalents, and the advantages of being Oxbridge-educated and London-based have become even more entrenched. This is the first academic study of the reformed QC appointments system and Dr Blackwell argues that its findings should become the catalyst for serious policy debate about abolishing QC status because its existence does not appear to be in the interests of consumers or of justice.
In the article, published in The Modern Law Review, Dr Blackwell explains that 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. Thus fewer women becoming QCs effectively impedes progress towards greater judicial diversity: and in doing so brings into question the legitimacy of the judiciary.
“Secondly, the status is justified as a ‘kitemark’ of quality for the consumers of legal services, so 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.” Becoming a QC means a major increase in the level of fees that they can charge.
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 were both that it lacked transparency and that it discriminated against groups including women, barristers who practised outside London and ethnic minorities. It has not been possible to research the effects on ethnic minorities for this paper due to lack of data. The reformed system has strong similarities to the reforms that took place at around the same time to judicial appointments: moving from ‘secret soundings’ to the establishment of an independent appointments commission and clear criteria for appointment.
Dr Blackwell conducted a statistical analysis of the careers of 11,453 barristers in 138 chambers (sets) between 1981 and 2011 to assess if some of the criticisms of the earlier system were well founded, and to see if the new appointments system altered things. He looked at 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. The statistics shows that, post-reform, women and non-Oxbridge educated barristers continue to be less likely than other barristers in the same chambers and of equivalent call to become QCs.
In the pre-reform period, an Oxbridge graduate who remained in an average set between their twelfth and thirty-fifth year post call had an expected 57 per cent chance of becoming a QC if male and 44 per cent chance if female. In the post-reform period these are now 52 and 40 per cent respectively, suggesting very little improvement. Dr Blackwell explains that the difference in the appointment rates between genders may, at least partially, be explained by differences in application rates between genders.
He adds: “This may be explained either by them knowing that they are less likely to be appointed or by different attitudes to risk. Whilst the introduction of a more open and transparent appointment system might have been expected to rectify this, it appears not to have done so.”
He concludes: “Reforms to the QC appointments system were introduced to address concerns that the old system of secret soundings unfairly disadvantaged groups such a women and those who were not part of a well-connected elite, eg non-Oxbridge graduates. Given this, it is very surprising that in the post-reform period the estimated partial effect of gender remains substantively large.”
Dr Blackwell’s statistics also show that barristers who are Oxbridge graduates are more likely to become QCs than their equivalents who are not Oxbridge graduates. This disparity has become even more pronounced post-reform.
The likelihood of becoming a QC is also highly contingent on the chambers that barristers are members of: in the post-reform period small London-based chambers are more likely to produce QCs. For example, for an Oxbridge educated male barrister, the estimated probability of becoming a QC between 12 and 35 years’ call is 98 per cent if they are in the set most likely to produce QCs, but only 14 per cent if they are in the set least likely to produce QCs: a range of 84 per cent.
Dr Blackwell concludes: “Because of the failure of the QC system to appoint the best advocates it does not operate as a perfect kite-mark of quality for consumers. Nor does it equally distribute the awards of QC status on any equitable basis. Finally, it might be thought to inhibit judicial diversity by restricting the pool from which the senior judiciary is traditionally recruited.”
Suggesting regular reappraisals for QCs, he adds: “The award of QC status is effectively for life, which might be thought to make the claim that it is a kite-mark of quality dubious.”
Additionally, the award of QC status might be thought to work against the interests of justice in the court setting where one side has appointed a QC but the other has not. QCs get to wear a silk gown rather than the “stuff” gown of junior barristers, and also sit on the front row of the court rather than those behind where the junior barristers sit. He argues that enhancing the status of an advocate with such honorific devices violates the notion of equality of arms that is central to the concept of a fair trial.
Dr Blackwell notes: “Serious policy debate about abolishing QC status has evaporated following the 2004 reforms. But the research in this article and additional arguments show there to be serious issues as to whether the existence of QC status is in the public interest. It is hoped that this research will inform any such future debate.”
For a copy of the paper, please contact Joanna Bale, LSE Press Office,firstname.lastname@example.org or 07831 609679.