Fuller version of the Opinion article, Journal, June 2008: critique of the system for appointment as Queen’s Counsel in Scotland

It is spring again and the time has come for applications to be submitted for the appointment of Queen’s Counsel. It is perhaps remarkable that in a system set up to dispense justice in an open and fair manner nonetheless the operation of the process for appointment to Queen’s Counsel in Scotland remains covert, unfair and discriminatory.

Barristers in England & Wales, and advocates in Scotland, are divided into two ranks, senior counsel and junior counsel. Senior counsel are accorded the title "Queen’s Counsel" (QC) after their name and are otherwise designated as "silks". Solicitors with extended rights of audience before the higher courts (solicitor advocates) are not divided along those lines, although they may make application for appointment as Queen’s Counsel. It is said that appointment accords the “rank and dignity” of senior counsel. Sometimes it is said that it is “status”, but whatever it is, it remains a public office, appointment to which carries significant consequences or benefits for both the applicant and the public.

Despite relatively recent changes to the system it remains clear that it is unsatisfactory, secretive and unfair. If according the title of Queen’s Counsel to a person is intended to convey some indication of ability, and as possession of the title gives a clear advantage to someone wishing appointment to judicial office and other posts or placements, it is important to ensure that the system is open and fair. The public interest is not best served by the current system that could very well skew the appointments, and thereby the pool from which candidates for further and higher appointment are taken. Although it might be asserted that the title of QC is not required for appointment to high judicial office, that really is disingenuous.

In Scotland, although all counsel of whatever rank may be instructed in any case, those who are in the rank of senior counsel are more likely to command a higher rate of fee for exactly the same work than can their junior counsel colleagues. This is particularly enshrined in the legal aid scheme regulated by the Scottish Government. Payment under the scheme for a murder case, for example, is 20% higher for a senior than for a junior doing the same work, based simply upon the difference in status.

Before counsel can apply to be considered for promotion, he or she must fulfil certain requirements in terms of length of relevant experience at the bar, lack of disciplinary or criminal record and not having been made bankrupt.

The Scottish Government has confirmed that appointment to the rank of Queen’s Counsel is a matter for the Judicial Appointments and Finance Division of its Courts Directorate and that the names of those recommended by the Lord Justice General are forwarded by the First Minister to Her Majesty for approval. However, the Scottish Government has also confirmed that "selecting the candidates for appointment is a matter for the Lord Justice General alone".

Under the previous arrangements, the Lord Advocate had the significant role of "filtering" applicants and forwarding the names. Although that is no longer a recognised function of the Lord Advocate, little has changed. What is effectively the final decision on candidates rests with one person. There is no known case where the Judicial Appointments and Finance Division of its Courts Directorate has rejected a name presented by the Lord Justice General. It is possible that there are examples, as experience of human nature would suggest that people who have been rejected at any stage of a process tend not to broadcast the fact.

This procedure whereby the Judicial Appointments and Finance Division of its Courts Directorate do not get to see or assess anyone whose name is not put forward by the Lord Justice General undermines the concept of fairness. It certainly lacks any semblance of transparency, but that is another matter. Leaving to one person the power to select from present or former colleagues those who are to join him in the ranks of senior counsel is manifestly wrong.

The justice system for resolution of disputes, whether in the civil or criminal courts, is adversarial. Irritation or hostility of judges to certain issues being addressed before them is frequently the basis of appeals when such behaviour or attitudes affect or even are reflected in judicial decisions. It is difficult to imagine anyone relishing personal criticism issued privately, but in the context of legal proceedings criticism is issued publicly and can be severe and deeply embarrassing. As Lord McCluskey observed in his book Criminal Appeal, "judges are only human". He also cautions lawyers against irritating the bench in the manner in which cases are presented.

Of course, it was being human and irritated by incorporation of the European Convention on Human Rights into Scots law that caused Lord McCluskey to have published an article in which he lambasted the very principles of the Convention with which he had been dealing in an appeal. The consequences of that were equally public, dramatic and embarrassing in that the whole bench was obliged to withdraw and the case (Hoekstra et al v HMA) was put back almost to first post. Just as a passionate antipathy for fundamental principles of law can give rise to problems, so could friction and resentment between the professionals within the system. It would be facile to suggest that anyone within the profession is immune from human frailty.

An application for appointment as "silk" is an application for appointment to public office and engages the fair hearing provisions of article 6 of the European Convention on Human Rights. A person who fulfils the requirements to have an application considered is entitled to the reasonable expectation that he/she will be treated fairly, within the meaning of the European Convention on Human Rights. The current system of assessing and deciding on the names to go forward does not address concerns that were raised about the old. Engagement of a lay observer of the process to provide a separate report to the First Minister can hardly be regarded as a serious answer to the practice of covert deliberation on who will or will not be appointed to the public office of Queen’s Counsel.

While a person may put forward the reasons, supported by references, as to why an application should succeed, there is no disclosure of information to the applicant of any information put forward as to why it should not. The applicant is not told by whom such reasons have been advanced, nor whether these are the basis upon which refusal of the application is to be made. Therefore, there is no means by which the applicant can know the real basis of a refusal, potential or otherwise. Intimation of the refusal of an application is normally by letter from the Private Secretary to the Lord Justice General stating merely that “the Lord Justice General was not disposed to recommend” the applicant for silk.

It is possible, after the decision has been made, to get some indication as to why it is said that an application failed, but that does not afford any basis for further procedure. There is no open hearing or mechanism by which the applicant can have the matter properly addressed, even in writing. Under the current procedure there is no appeal from the Lord Justice General’s decision, and there is no practical and effective remedy available through the courts as the Lord Justice General is both Lord Justice General and Lord President to whom other judges are subordinate. It is important to maintain the focus on the role of the Lord Justice General in this process. Although it is said that the actual appointment is made by a body other than the Lord Justice General, the reality is that only those whose names are put forward can be considered and appointed, as the Directorate does not get to see any other applicants’ details.

If it were possible to have the mechanics of the process examined in anticipation of judicial review, it would still serve no purpose. As the only person with the right to select names to go forward to the Directorate is the Lord Justice General, all that could happen is that the application is returned to him to reconsider. The European Court of Human Rights in the cases of Kingsley v UK, application no 35605/97, decision 7 November 2000, and McGonnell v UK, application no 28488/95, decision 8 February 2000, points to judicial review as being inadequate.

The United Kingdom has more than one jurisdiction, but appointment to the rank of Queen’s Counsel from the rank of junior counsel is common to all. However, in England & Wales the system employed is radically different from that in Scotland and is not open to the same criticisms as those that apply in Scotland. It is difficult to avoid recognising that in England the system of patronage was removed from the process and replaced with a system that recognises merit, the right to a fair process and openness. Accordingly, it is perhaps arguable that applicants under the Scottish system are discriminated against by the United Kingdom. Differing treatment of people in any process might be excusable, but it would be impossible to imagine let alone find a single reason to legitimise such discrimination in arrangements and practices for appointment to an office that is common to all jurisdictions. Insofar as this is discrimination in respect of a right to a fair hearing under article 6 of the Convention, it is also a violation of a right not to be discriminated against, which is guaranteed under article 14 of the Convention.

Not every lawyer has the desire for such official approval or status that seems to be associated with the title of Queen’s Counsel, but for those who do a fair and open process of selection is essential. Decisions that are made in secret and that affect the citizens of this country are bound to be viewed occasionally with concern, if not outright suspicion. There is no good reason for this secrecy and denial of fair process. Applicants and the public deserve better.

The Author
John Carroll, solicitor advocate, Glasgow. The author has not applied and does not intend to apply for the rank of Queen’s Counsel.
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