Elizabeth Davidson: QC or not QC is the question

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SIGHS, sobs and the sound of furious scribbling may be emanating from the Faculty of Advocates as you read this. The silk round is under way.

Prospective Queen’s Counsel (QCs) have until Thursday to apply for the award of the elite advocacy kitemark. Becoming a QC is a passport to more important cases, prestige and higher fees. It is hard to get (but once you have it, it’s for life).

The process is “still, to a certain extent, shrouded in mystery” and “appropriately demanding”, says John Scott QC, one of eight practising solicitor advocate QCs in Scotland rather than a member of the Faculty of Advocates and therefore not, as he says, “family”.

In Scotland, applicants submit a form and self-assessment of suitability to the Lord Justice General, along with two references. There is no application fee. Lord Gill will choose the best candidates and advise the First Minister, who passes the list on to the Queen.

It’s a walk in Holyrood Park compared to applicants south of the Border. There, the system takes nearly a year. The form has 64 pages, and applicants must detail 12 cases from the last two years which illustrate their skills in higher-court advocacy. From these, they must give 12 judges, six barristers and five solicitors as potential referees, nine of whom may be called to give references. About 70 per cent of applicants are interviewed. The success rate overall is 42 per cent.

It is common for applicants to hire a consultant to help negotiate the process. Kate Blackburn, director of Sherwood PSF Consulting, has been coaching QC and judicial office applicants since the new selection process began in 2005. Previously, QCs were chosen – as in Scotland – through a secretive process of “recommendation”.

“It can be a culture shock,” she says. “They are used to the theatre of court, but this is very different. Sometimes, in interview practice they put on their ‘court voice’ and we have to ask them to relax and not treat questions with suspicion. We have also had barristers ask us for the questions in advance.”

It is also pricey. In England it costs £1,700 to apply and a further £3,500 if successful.

New silks are expected to throw a celebratory party in chambers. Then there is the gloriously medieval ceremony at Westminster Hall with all the new QCs attired in full regalia of full-bottomed wig, silk gown, stockings and shiny, buckled shoes. The cost of hiring this outfit for a day is about £5,000.

In Scotland successful applicants pay a fee of £630. There is no information about mandatory celebration.

To some, the English process may seem excessive. The Bar, however, has worked hard to eliminate any inherent bias from the process, partly because silks tend to become judges and it is important that they reflect wider society. Women have had a higher success rate than men so far, although fewer apply.

The Scottish approach is cheaper, less arduous, and more opaque. An “independent observer” oversees the process for fairness. However, on diversity, John Scott says: “It’s not happening. Our bench is less diverse than in England. I find it horrifying that our first female high court judge, Lady Cosgrove, was appointed only in 1996. We need to look at widening the pool.” Three of the 16 QCs appointed in 2011 and 2012 were women.

One thing is certain. Scottish advocates and solicitor advocates stressing about their application can look south of the Border and wonder.