Appointment of Queen's Counsel in Scotland 2022

Observations

The King's Counsel nomination process differs in significant respects from 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, the assessment criteria are narrowly drawn and specific to a singular field of practice, and the decision to recommend applicants for appointment is made without any interview or other interaction with applicants. There are, however, points in the process where fairness and transparency may be demonstrated.

In order to ensure fairness, the criteria for success must be set out clearly in advance and applied rigorously. The criteria set out in paragraphs 3.2 to 3.5 of the Guide require applicants to have:

• demonstrated an ability to present complex, difficult and novel cases in court (3.2 Advocacy) and
• extensive experience in advocacy at both first instance and appellate level (3.3 Legal Ability and Experience).

Paragraph 3.3 also states that particular significance will be attached to cases in the official (Session Cases) reports.

I have noted that amongst the successful applicants in 2022 there are five who were unable to refer to their involvement in any reported appeal cases and one who cited only one such case. If this is indicative of a recognition that the criteria may be met without applicants being able to refer to reported appeal cases, I would recommend that consideration be given to making that clear in the criteria as set out in the Guide. Failure to do so may unfairly discourage future potential applicants.

There is evidence from studies in other spheres of human activity which demonstrates that women are generally less likely than men to put themselves forward if they consider that they do not meet all the specified requirements.

On a point of detail, I have noted that assessments have taken account of a wider range of reported cases than simply those in the Session Cases.

I am aware that planned changes to the way in which references are submitted in future rounds are designed to encourage greater compliance with the requirement to address the criteria. If successful, this will improve the transparency of the assessment process.

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 King's Counsel in Scotland. I understand that some further progress has been made since my last report towards establishing such a process, although no details are yet available.