Proposed changes to the system for appointing QCs are “too onerous” and “potentially counterproductive in addressing issues of diversity”, the Criminal Bar Association (CBA) has warned.
The CBA said requiring applicants to list all cases in the last three years, rather than their 12 most important cases within that time, could discourage female barristers with fewer cases due to career breaks or flexible working.
“The CBA welcomes incremental improvements to the appointment scheme but considers that such a wide-ranging and potentially onerous change such as this would discourage applicants, particularly minorities and those of limited means at the criminal Bar.
“We have found women in particular and practitioners of limited means have less choice with respect to accepting instructions, indeed most continue to abide by the ‘cab-rank’ rule and accept cases that may seem insignificant according to the scheme’s criteria.”
Responding to a consultation by Queen’s Counsel Appointments on the listing of cases and assessors, the CBA went on: “If a minority applicant considered there were too many ‘insignificant cases’, that applicant would be discouraged from applying for appointment despite the fact that they had ability, talent and could demonstrate the required competencies from the significant cases that they had conducted.”
The CBA said that since “confidence is key to making the application”, less confident practitioners would be less likely to apply, with a negative impact on diversity.
The association argued that applicants with a mixed practice in different courts around the country were also at a disadvantage, compared to practitioners conducting most of their cases at one court centre.
“This is because judge assessors seeing counsel regularly in one place are more likely to have an accurate and more detailed memory of that advocate as opposed to a single appearance.”
The CBA said the concern expressed in the consultation that applicants had “too much control” over cases listed or “take hints” from prospective referees suggested that they were somehow taking advantage of the system.
“The CBA feels that this is an unjustified criticism where applicants are invited to present their best work as supported by those that have experienced it.
“Further the suggestion that women are so lacking in confidence and naïve as to not ‘sound out’ assessors is not something we have seen among those we have consulted.”
The CBA concluded that the QC application process was “fundamentally sound”, a view it said was shared by the Lord Chancellor and other professional bodies, and that “wide-ranging change” was not required.
In their responses to the consultation, the Law Society backed the switch to listing all cases within the last three years, but the Bar Council disagreed.
Responding to the QCA’s second consultation – on integrity, character and conduct – the CBA said that in the absence of significant issues regarding this aspect of applicants’ behaviour, it would be “inadvisable” to make an amendment that could potentially discourage applicants who already had to deal with a lengthy process.
“The CBA would urge the QCA to trust the other professional bodies and assessors’ judgement, rather than through the application process requiring further material or evidence on this subject.
“In a profession already at a low ebb due to financial constraints and ever-increasing workload, to even hint that individuals may have character, conduct or integrity issues is likely to reduce even further applications in our view.”
The Bar Council argued in its response on character and conduct that QCs should only lose their designation if they were disbarred.