No place for secrecy

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, the operation of the process for appointment in Scotland remains covert, unfair and discriminatory.

Barristers in England & Wales and advocates in Scotland are divided into two ranks, senior and junior counsel. Solicitors with extended rights of audience are not so divided, although they may apply for appointment as Queen’s Counsel. Appointment is said to confer the “rank and dignity”, or sometimes the “status”, of senior counsel, but whatever it is, it remains a public office, carrying 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. The public interest is not best served by a system that could very well skew the appointments, and thereby the pool from which candidates for further and higher appointment are taken. In Scotland also, although all counsel may be instructed in any case, those in the rank of senior counsel are likely to command a higher fee for exactly the same work than can their junior colleagues. This is particularly enshrined in the legal aid scheme. Payment under the scheme for a murder case, for example, is 20% higher for a senior than for a junior doing the same work.

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, it has also confirmed that “selecting the candidates for appointment is a matter for the Lord Justice General alone.”

There is no known case where the Judicial Appointments and Finance Division has rejected a name presented by the Lord Justice General, though admittedly experience of human nature suggests that people who have been rejected at any stage of a process tend not to broadcast the fact. But the procedure whereby the Division does not get to see or assess anyone whose name is not put forward undermines the concept of fairness. Leaving to one person the power to select from present or former colleagues those who are to join the ranks of senior counsel is manifestly wrong.

The 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 appeal. In the context of legal proceedings, criticism issued publicly can be severe and deeply embarrassing. Lord McCluskey observed in his book Criminal Appeal, “judges are only human”.  He also cautions lawyers against irritating the bench in the presentation of cases. Of course, it was such irritation with the European Convention on Human Rights that caused Lord McCluskey to publish an article in which he lambasted the very principles of the Convention with which he had been dealing in an appeal. The consequences were equally dramatic in that the whole case, Hoekstra v HMA, had to be reheard. It would be facile to suggest that anyone within the profession is immune from human frailty.

While a person may put forward reasons, supported by references, why an application should succeed, there is no disclosure to the applicant of any information put forward as to why it should not. Therefore, there is no means of knowing the real basis of a refusal. Intimation 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 an application failed, but that does not afford any basis for further procedure. There is no appeal from the Lord Justice General’s decision and there is no practical and effective remedy available through the courts.

If it were possible to have the mechanics of the process examined in anticipation of judicial review it would still serve no purpose, as all that could happen would be that the application would be returned to the Lord Justice General for him to reconsider.

Not every lawyer has the desire for the official approval or status 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.

A longer version of this article can be found at www.journalonline.co.uk/ submissionss