Appointment of Queen's Counsel in Scotland 2021

Observations

The QC appointment process differs in significant respects from the process applied to public appointments by the Scottish Ministers under the Code of Practice for Ministerial Appointments to Public Bodies in Scotland.

The pool of potential applicants is strictly limited. This appears to be unavoidable if the high standards of representation in the superior courts in Scotland are to be maintained. Any reduction could impact on the level of service available to those who choose to instruct senior counsel and, perhaps in time, on the reputation of the Scottish legal system.

There is no advance indication of the number of senior counsel to be appointed in any round. As noted, the Lord Justice General invites the Dean of the Faculty of Advocates to indicate if there is a shortage of senior counsel specialising in particular areas of practice. However, this is not tested in any way - for example by consulting the Law Society of Scotland, by whose members counsel are generally instructed on behalf of clients. Nor is any shortage formally intimated to potential applicants.

The period for lodging applications and providing references is short by comparison with other appointment processes. As noted above, it may be that consideration should be given to allowing a longer period for detailed references to be supplied. The proposed introduction of a reference form will undoubtedly be of assistance to some referees by setting out clearly the aspects of the applicant's work and professional record to which their observations should relate.

The criteria against which QC applications are assessed are less specific than for public appointments by the Scottish Ministers. Moreover, the Lord Justice General is firmly of the view the three criteria, as set out in paragraphs 3.2 to 3.5 of the Guide for Applicants, are inseparable. That raises a semantic question as to whether the position might be more accurately set out in the Guide by indicating that a single criterion of excellence and experience in advocacy will require to be demonstrated by reference to the applicant's record in relation to the three elements currently described as criteria.

The Guide for Applicants sets out the importance of "extensive experience in advocacy at both first instance and appellate level". The Lord Justice General has explained that changes to the way in which appeals are heard in the Court of Session coupled with a trend for senior counsel alone to be instructed in these proceedings mean that it is becoming more difficult for junior counsel to demonstrate their abilities and experience at appellate level. This appears to be an important aspect of the current assessment process and may need to be reviewed in future appointment rounds. Even in this round, the most frequent comment from judges not on the scoring panel was U (unable to comment due to insufficient knowledge of applicant).

Unlike assessments made by a panel dealing with a Ministerial public appointment, which are marked and weighted, aggregated or averaged, judges' scores are not expressed numerically. They are worded as opinions and are treated by the Lord Justice General as advisory. Multiple positive opinions are clearly influential. However, there is no minimum level which must be achieved by applicants and only five of the successful applicants were marked as A (well fitted … and sufficiently outstanding to merit appointment this year) by any of the judges on the scoring panel. There is no right of appeal against the decision of the Lord Justice General.

Positive adjustments have been made to the process in recent years, such as the provision of feedback to all unsuccessful applicants, and I welcome the Lord Justice General's willingness to consider adjustments to the Guide and application forms and to introduce a form for references.

My immediate predecessor as Independent Observer, Jessica M Burns, recommended in her reports for 2019 and 2020 that there should be a proper process for the appointment of honorary QCs in Scotland. I understand that some progress has been made towards establishing such a process, although no details are yet available.