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Summary of Revised Process for QC Award for England and Wales
(approved by the Professions 23 November 2006)
This paper summarises the revised process for the selection and appointment of Queen’s Counsel in England and Wales. The scheme has been developed by the Bar Council and the Law Society, with support from the Department for Constitutional Affairs, and revised in the light of the experience of the 2005-06 competition.
The scheme is based upon a revised set of competencies, including by way of example behaviours required of leading advocates. Apart from regulatory checks described in Paragraph 3, evidence will only be gathered and assessed against the competences and only from those who have seen the applicant ‘in action’.
Combined with the revised competency framework, the revised process serves the public interest by offering a fair and transparent means of identifying excellence in advocacy in the higher courts.
The scheme:
- places the competencies required of an advocate at the heart of the scheme
- places selection in the hands of an independent selection panel
- includes appreciable “lay” (non-lawyer) membership and judicial membership on the selection panel.
- includes a modern “self assessment” in relation to the competencies and ensures that the “self assessment” is taken into account at the stage of decision
- contains no element of “automatic consultation” or “secret soundings”
- addresses the problem of “visibility” by focusing the selection of references towards only those who have personally seen the candidate
- takes references from judges, practitioners, and professional clients, clients or client proxies
- includes a face to face interview of the candidate, involving members of the Selection Panel
- provides for the publication of information about the broad fields of law in which the candidate has demonstrated excellence as an advocate at the time of appointment
- provides a mechanism for removal of the award for cause
- provides arrangements for feedback to unsuccessful candidates, and for a complaints procedure.
- is wholly self-financing
Bar Council of England and Wales
Law Society of England and Wales
[November 2006]
- Candidates will be required to complete an application form, to include a “self assessment”, allowing the candidate to provide his or her own evidence against published competences. The form will also require candidates to disclose criminal convictions or findings of professional misconduct. The Selection Panel takes the view that under the Rehabilitation of Offenders Act 1974 a candidate need not disclose a spent conviction and the Panel will not take a spent conviction into account when considering a candidate.
- Those who anticipate applying in the future will be encouraged to make contemporaneous notes about their work in order to help them complete the self assessment when the time came for their applications to be made.
- The scheme will be administered by its own Secretariat, with its own premises, independently of the DCA, the Bar Council and the Law Society.
- There will be no initial filter. References will be sought on all candidates.
- The list of candidates will go, confidentially, to the senior member of staff with responsibility for professional conduct at each of the professional bodies.
- This will be to ensure any findings, or pending complaints, of misconduct are identified.
- Where a finding or complaint had not been identified or addressed by the candidate in the application form, the candidate will be given an opportunity to address in writing (a) any question of non-disclosure by the candidate of the finding or complaint and (b) the materiality of the finding or complaint to the candidate’s application.
- Guidance has been prepared by the Selection Panel about the extent to which previous criminal convictions or findings of professional misconduct should be taken into account in assessing a candidate’s suitability.
- The list of candidates will go to the following judges: the Lord Chief Justice, the Master of the Rolls, the Senior Presiding Judge for England & Wales, President of the Queen’s Bench Division, the Chancellor of the High Court and the President of the Family Division.
- Where the Lord Chief Justice, the Master of the Rolls, the Senior Presiding Judge, the Chancellor of the High Court or one of the Presidents has reason to believe that an issue concerning integrity as it related to the competency framework was known to another judge, they will be entitled to invite the Selection Panel to seek comments from the judge concerned.
- Where comments are sought from the judge concerned, the comments will be directed at the integrity element of the competency framework. Concerns will have to be fully particularised.
- Concerns about integrity identified in this way will be put to the candidate concerned, so that the candidate has an opportunity to provide an explanation to the Selection Panel on the matter.
- It will be for the Selection Panel to decide what weight to give to the comments made by the judge, taking into account the candidate’s explanation and the rest of the information available to the Selection Panel.
- Four references will be taken in writing.
- Candidates will be required to list 12 judges in front of whom they have appeared substantively in cases of substance, complexity or particular difficulty or sensitivity over the last 2 years (including but not limited to High Court and above, Circuit Judges, deputy High Court Judges, Tribunal Chairs, Recorders and District Judges) and arbitrators (or umpire or chairman, as appropriate), or equivalents.
- The 2 year period will increase to 3 years where the number listed for 2 years will be less than 12.
- Candidates will be given the further option of identifying appearances outside that 2 (or 3) year period if the appearances were believed by the applicant to be material to the applicant’s suitability for the award.
- Candidates will be asked to nominate two judges from those listed, numbering them in order of preference. The candidate’s first choice will be asked to give a confidential written reference. If the applicant’s first choice of nominated judge is unable to provide a reference, then the applicant’s second choice will be invited to do so instead.
- The Selection Panel will select a further 3 judges or arbitrators from the list (in addition to the first nominated judge) for confidential written references. The selection will be made to provide a range of types of exposure and having regard to the ability of the judge to able to address with authority the candidate’s demonstration of the competencies. The selection will include (i) (where applicable) a senior judge with experience of the candidate’s specialism(s) and (ii) the judge (or arbitrator) before whom the candidate had appeared most frequently.
- To assist their contribution, the judges or arbitrators selected will be given information provided by the candidate about the name, month and year of the case(s) in which they appeared before the referee, and the brief account given by the candidate of his/her degree of exposure to the referee.
- Three references will be taken in writing.
- Candidates will be required to identify 6 practitioners by whom they have been led (or, if applicable, whom they have led) or against whom they have appeared, in cases of substance, complexity or particular difficulty or sensitivity over the last 3 years (or outside that 3 year period if the case is believed by the applicant to be material to the applicant’s suitability for the award).
- Candidates will be asked to nominate two practitioners from those listed, numbering them in order of preference. The candidate’s first choice will be asked to give a confidential written reference. If the applicant’s first choice of nominated practitioner is unable to provide a reference, then the applicant’s second choice will be asked to do so instead.
- The Selection Panel will select a further two from the 6 identified by the candidate (in addition to the first nominated practitioner) for confidential written references. The selection will be made to provide a range of types of exposure and having regard to the ability of the practitioner to able to address with authority the candidate’s demonstration of the competencies.
- To assist their contribution, the practitioners selected will be given information provided by the candidate about the name, month and year of the case(s) in which they appeared, and the brief account given by the candidate of his/her degree of exposure to the referee.
- Two references will normally be taken.
- Candidates will be required to identify 6 individuals who have been (in their own right or on behalf of their firm or employer) professional clients, clients or client proxies, in cases of substance, complexity or particular difficulty or sensitivity over the last 3 years (or outside that 3 year period if the case is believed by the applicant to be material to the applicant’s suitability for the award). If a candidate was unable to put forward the names of 6 individuals the candidate will be asked to explain why and to put forward those names that were possible.
- Candidates will be asked to nominate two individuals from those listed, numbering them in order of preference. The candidate’s first choice will be asked to give a confidential written reference. If the applicant’s first choice of nominated client referee is unable to provide a reference, then the applicant’s second choice will be asked to do so instead.
- The Selection Panel will select another person (apart from the first nominated client referee) from the 6 identified by the candidate, for a confidential written reference. The selection will be made to provide a range of types of exposure and having regard to the ability of the client to able to address with authority the candidate’s demonstration of the competencies.
- Before any decision to interview, it will be open to the Selection Panel members (or senior members of the Secretariat under their direction) to approach referees where on the face of it the reference appears to be lacking in evidence.
- Each application, with the self-assessment and all references, will be read by 2 Selection Panel members (one lay; one professional) in preparation for interview. Any application which appears to the Panel members on the information available not to demonstrate the competencies sufficiently to make them at that stage a credible candidate for appointment in the instant year may be put to the full Selection Panel for a decision to treat the application as unsuccessful.
- The full Selection Panel will then conduct a review of these decisions, including collective moderation of any borderline cases.
- All candidates whose application is not to be treated as unsuccessful at this stage will be interviewed by two members of the Selection Panel (one lay and one professional). The interview will be directed at the competencies with a view to adducing further evidence as to their demonstration by the candidate, and resolving any questions over the application.
- Following interview, at least 2 Selection Panel members (one lay; one professional) will grade the candidate.
- The full Selection Panel will then conduct a review of these initial grades. There will then be collective moderation, scrutiny of borderline cases, and the list of successful candidates will be finalised. It will not be open to the Selection Panel to call any candidate for further interview.
- Selection Panel members will prepare written feedback comments for each unsuccessful applicant.
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The Selection Panel will be independent, will act in the service of the public interest, will include “lay” (non-lawyer) membership and must command respect.
- The Selection Panel will consist of a minimum of 9 members, including a retired senior judge, senior lawyers, (among whom there should be both barristers and solicitors), and distinguished lay people. There should be equal numbers of lay people and lawyers (excluding any judicial member).
- The Selection Panel will be chaired by a distinguished lay person.
- Members of the Selection Panel will be remunerated at a rate that reflects the importance and seniority of their positions.
- Decisions of the Selection Panel will be valid notwithstanding any vacancy or the absence of a Panel member from a meeting or meetings.
- The appointments to the Selection Panel will be made as follows:
(a) the chair, initially by joint nomination of the Chairman of the Bar and the President of the Law Society;
(b) the other lay members, by open competition;
(c) the judicial, barrister and solicitor members, initially by nomination by the Chairman of the Bar (for the barrister members), the President of the Law Society (for the solicitor members), and the Chairman of the Bar and the President of the Law Society jointly (for the judicial member).
- Each open competition for the members of the Selection Panel will be conducted by an appointment panel. The appointment panel will comprise three members, two nominated respectively by the Chairman of the Bar and the President of the Law Society, the third being a distinguished lay chair nominated by the other two members. The appointment panel will be supported by suitable competency-based selection and Equal Opportunities expertise.
- The Selection Panel will receive training from and be supported by suitable expert advice on equal opportunities and competency-based selection.
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The Selection Panel will also have the responsibility of reviewing cases where cause was shown why a candidate receiving the award should later be deprived of it.
- The final list of successful applicants will go to the Secretary of State for Constitutional Affairs and thence to the Queen for the issue of letters patent.
- The question of the appointment of QC “honoris causa” will be a matter for the Secretary of State and is not part of this process.
- The appointment will be conferred at a ceremony presided over by the Secretary of State.
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The announcement of the award should be accompanied by the publication of information about the broad fields of law in which the candidate has demonstrated excellence as an advocate at the time of appointment, being one or more of criminal, family and civil law.
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This is not intended to restrict the fields of law in which the candidate appointed as QC may practice, the title being simply “QC”.
- All candidates will be notified of the outcome of their application before the conclusion of the competition. Where an application is unsuccessful, feedback will be provided by the Secretariat. The feedback will be guided by the feedback comments prepared for each unsuccessful candidate by a Selection Panel member.
- The feedback will be designed to assist focus on improvement, by identifying the areas in which the candidate needed to demonstrate more evidence, or to improve his/her standard further.
- Concerns or complaints about the operation of the system will be addressed by a complaints committee comprising a senior judge (nominated by the Lord Chief Justice), a lay person (appointed through public competition), a senior barrister (nominated by the Chairman of the Bar) and a senior solicitor (nominated by the President of the Law Society).
- In the event that the complaints committee upholds a complaint by an unsuccessful candidate, that will not mean that the candidate will automatically receive the award; instead the question whether the award should be made will be referred back to the Selection Panel for decision in light of the findings of the complaints committee.
- The process will be self-financing.
- A fee will be charged on application.
- A further fee will be charged on appointment (over and above the fee necessary to cover the cost of the letters patent and appointment ceremony).
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