Stonecliffe: Looking to encourage more candidates
A Bar Council working group has outlined ways to better support barristers applying for silk but also heard calls for a review of the whole appointment process.
It recommended new guidance to explain how the increasing number of barristers advocating in diverse non-court venues can utilise that experience in their applications.
The scope of the working group was limited to how applicants could be better supported, how the Bar Council could help employed barristers gain the skills required to apply, and whether there was scope for KC Appointments (KCA) – the body that oversees the process – to increase the breadth of referees that candidates could list.
Of the 18,229 barristers in England and Wales, 12% (2,190) are KCs – male and white barristers are significantly more likely to be KCs than women and those from ethnic minorities.
The report said: “Our key finding is that barristers across the Bar have developed increasingly diverse practices, advocating for clients in a variety of forums which operate differently to the traditional structures of the higher courts. This applies both at the self-employed Bar, and for some at the employed Bar…
“In particular, we identify the need for practice specific support, which explains how applicants can utilise their increasingly diverse portfolios in KC applications to better evidence their skillsets and in order to identify suitable referees.”
The working group recommended that the Bar Council, on behalf of the specialist Bar associations and employers, should regularly brief the KCA on “practice-specific developments relevant to demonstrating excellence in advocacy”.
It explained: “This should extend to providing information and guidance for the KCA selection panel on what ‘excellent’ might look like in particular specialisms and what barriers those in different specialisms might face.”
Second, the Bar Council should ensure there is “accurate and relevant guidance and support” on progression for barristers, including signposting opportunities to undertake pro bono work to support a KC application.
Third, KCA should “better highlight” the range of forums and wider experience which can be brought into an application and finally a non-exhaustive list of eligible judicial assessor roles should be created.
“A list of examples of the roles that meet the criteria of a judicial assessor should be created as there continues to be confusion over what type of work qualifies…
“KCA might also need to highlight more prominently in guidance/outside their guidance that not all cases need a judicial assessor (as the perception remains that this is the case).”
The report identified issues beyond its remit, such as the existence of a number of practice areas “which leave practitioners with difficulty evidencing their skills within the current parameters of the KCA process”, how some barristers find it difficult to develop and demonstrate their advocacy skills through undertaking pro bono work, and the need for further research “to properly assess the limitations and barriers faced by practitioners with certain protected characteristics”.
The latter could include establishing a KCA diversity forum, it said.
Further, the working group recorded that some consultees pushed for a review of the whole silk application process, including use of evidence and assessors for KCA applications.
“The Bar Council, jointly with the Law Society, should review the KCA assessment process regularly, e.g. every three years, to properly assess its continued relevance to modern legal practice.
“This can be done without the need to revisit the definition of advocacy (although in time the definition may need to be reconsidered).”
Working group chair Heidi Stonecliffe KC, vice-chair of the Bar Council, said it was concerned that “some exceptional advocates may be self-selecting out of the process because they are uncertain whether their particular career path, area of practice, or experience fits the perceived profile of a silk or the criteria for appointment.
“By providing greater clarity and more nuanced guidance, we believe that we can encourage the strongest candidates from across the whole Bar to apply, helping to ensure that the KC cohort fully reflects the breadth and excellence of advocacy across the Bar of England and Wales.”
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