THEY STILL wear black patent buckled shoes, tights and full-bottomed wigs — at least on high days. But from today Queen’s Counsel or silks may be a very different breed. A new selection system comes into force aimed at widening the variety of lawyers eligible for the legal profession’s elite rank; and, in time, breaking the dominance of the private-school, Oxbridge, Bar background.

The scheme comes about after months of debate and compromise. The hallmark title of QC remains, even though the Law Society initially would have liked it scrapped. Advocacy remains the yardstick: this is not the full-blown accreditation scheme for all areas of expertise that solicitors had sought. But it is radical reform.

Change was needed. Sir Colin Campbell, the independent watchdog or Commissioner on Judicial Appointments, had criticised the system over its potential for discrimination and personal prejudice. The system relied on“secret soundings”: private references from 400 of the great and the good among judges and lawyers. Many did not know the individual concerned. The system discriminated against solicitors who did not mingle with judges on circuit or appear before them in court. In frustration, the Law Society opted out and boycotted the annual selection process.

The system allowed also for a perception, at least, of personal patronage. The Lord Chancellor, whose officials ran the process, had the final say; and Lord Irvine of Lairg was known to have replaced names from the A-list of potential candidates with names from the B-list.

Michael Caplan, one of few solicitor-QCs and a senior partner at Kingsley Napley, says that the former system was scrupulous. He argues that officials tried hard to consider every application on merit. But it did not fully acknowledge the work of solicitors.

“Whatever a barrister may have said in court,” he adds, “he would have been bound by the solicitor’s letter before action or conduct at the police station, which may have won or lost the case. The solicitor exclusively was responsible for that form of advocacy. Few people also appreciate the skill in taking a statement from a witness.”

The new scheme will be run by the profession, not the Government, and will comply with modern transparent selection methods. The downside is cost: successful applicants will have to fork out about £4,000 (they pay £1,800 up front and a further £2,250 if made a QC).

Will the fees deter aspirants? Jane Hoyal, who chairs the Association of Women Barristers and is a leading critic of the old system, says: “If that is the price to pay for a proper fair selection system, so be it. It is not so great when you consider the yearly earnings of a QC.”

The scheme will look at advocacy, but in its broadest sense: written as well as oral. Candidates will be assessed against seven “competences”: integrity; understanding and use of the law; analysing case material to develop arguments; persuading or communicating arguments; responding to the unfolding of the case, and working with the client and working in a team.

The crux of the new system is self-assessment. Candidates will say how they meet the seven competences and select referees who have encountered them at work. A novel feature is the references from clients or client proxies.

David Watts, head of the secretariat to the new independent selection panel under the chairmanship of Sir Duncan Nichol, agrees that this could, with solicitor-advocates, result in criminals giving a verdict on their lawyers. “But,” he cautions, “we refer really to professional referees, such as police officers and probation staff.”

The new system is laborious in its efforts to be fair. The referees will be interviewed by phone and the candidate will have a face-to-face interview with two members of the nine-member selection panel and a human resources expert. Here the panel will look for evidence of “client care” or“people skills” and an understanding of diversity and cultural issues. The selection panel members, chosen through open competition, will be trained for this task. After interview, the panel grades the candidate, then the full selection panel reviews the initial grades. There is a collective moderation and scrutiny of borderline cases before a final list is made. The panel will also have power to strip a candidate of his award.

The final list goes to the Lord Chancellor, then to the Queen.

Under the new “competences” test, many more solicitors, women and ethnic minority candidates are likely to apply. Only eight solicitors have successfully applied for silk since 1996, when they became eligible for higher court advocacy rights out of a potential 2,500. Applications are expected from several hundred lawyers, and the new silks will be announced next spring.

Caplan, who considers himself deeply honoured to have been made a QC, hopes that there will now be proper recognition for solicitors.

He says: “Last month an event went unnoticed: it was probably the first time two solicitor-QCs faced each other in court. That needs to be repeated. And I hope I won’t have to face the curious question at dinners when people see my name and ask where I did pupillage.”

HOW THE SYSTEM ADDS UP

• Applicants in 2003 (last year of the old scheme): 394
• Awards of silk: 121
• Men: 112 awards out of 355 applications; women 9 of 39
• People from ethnic minorities: seven awards out of 23
• Solicitors: one award out of ten applications
• Average earnings of QCs appointed: £246,274 (no longer a criterion under new scheme)

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