Failure of QC appointment system to deliver diversity “should cast doubt on future of status”
Time to hang up the QC wig?
Abolishing the status of QC should now be seriously considered in the light of research that shows male Oxbridge-educated junior barristers from London-based chambers are still far more likely to take silk, according to a new study by the London School of Economics and Political Science.
The research, by former Linklaters solicitor Michael Blackwell, assistant professor of law, said the appointment regime put in place in 2004 has failed to improve diversity, with women still less likely to be appointed than their male equivalents, and the advantages of being Oxbridge-educated and London-based actually becoming even more entrenched.
Dr Blackwell said the findings should be a “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”.
He conducted a statistical analysis of the careers of 11,453 barristers in 138 chambers between 1981 and 2011 to assess the pre and post reform appointment system. The findings showed that, post reform, women and non-Oxbridge educated barristers continued 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% chance of becoming a QC if male and 44% chance if female. In the post-reform period, these were 52% and 40% respectively.
The academic acknowledged that these differences rates may, at least partially, be explained by differences in application rates between genders, with women less likely to apply because they knew they were less likely to be appointed.
“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 said.
The statistics also showed that barristers who are Oxbridge graduates were now even more likely to become QCs than their equivalents who were not Oxbridge graduates than was the case in 2004.
The likelihood of becoming a QC was also “highly contingent” on their chambers: 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% if they are in the set most likely to produce QCs, but only 14% if they are in the set least likely to produce QCs.
In an article, to be published in The Modern Law Review, Dr Blackwell said: “Because of the failure of the QC system to appoint the best advocates, it does not operate as a perfect quality mark 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.”
If the system was to continue, he added, there should be regular reappraisals, an argument made previously by the Legal Services Consumer Panel. An award for life made the claim that it was a quality mark “dubious”, he suggested.
Dr Blackwell also questioned whether having a silk on one side of a case and a non-QC on the other – with the obvious differences made between the two in court – violated the principle of equality of arms.
He concluded: “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.”
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