What is a Silk?
Within the British legal system, a senior barrister is referred to as a Queen’s Counsel (QC) when they are appointed by the Monarch. They are known as a silk because a silk gown is usually worn in court. When a barrister becomes a QC, they are then entitled to wear the special robe only reserved for silks.
Originally, only those who had been trained in the Inns of Court would be eligible, but this rule was relaxed in 1841. Eventually, judges as well as barristers in the common law courts earned the title as well, and it wasn’t long until the civil courts also adopted the custom.
The silk gown originally had a square shape, but the robe that is now worn originated at the end of the 1700s. At one point, both men and women wore the same gown design. However , the more elaborate robes with embroidery became the design that was seen as more appropriate for women. These gowns were only worn in court and not outside of them. Nowadays, the rules are much more lax, yet the traditional robes are usually reserved for this high court.
After being appointed as a QC, the barrister needed to recertify every five years to keep their title. This registration cost £50. As of June 2008, the recertification process is no longer used, but in order for a barrister to reapply, they must pay the £300 registration fee for the Office of the Judicial Appointments Commission.
Silks are still expected to give back to the community by doing pro bono work. Those who do not usually pay a fee to clients, unless it is specifically requested to at the recommendation of the QC.
The History of a Silk Title
For over 500 years, certain senior barristers have been conferred the title of silk (as opposed to staying plain old ‘barred’), after an incredibly arduous examinations process. While this title, not surprisingly, has its roots in the long dead French language, there is some debate as to when it first appeared. It’s thought that the term appeared in the UK in the 1490s, when William Wellesborne, a barrister of Lincoln’s Inn, was elected by his fellow members of the Inn to wear a robe of crimson silk in court. This ceremonial garb was to demonstrate his experiences, as he had a colorful trading history and many adventures abroad.
From this point on, the traditions sacrosanct to QC appointment began. The Inn took over the cost of the robe, and is still obliged to this day, to fund the cost of the ceremonial set for the Queen’s Speech. The title ‘silk’ was more than an addition to the Junior Bar’s ‘barred’, it was a true movement up the career ladder. As such, wearing the new robes was a great occasion, as described by the following passage from 1627: "on the Thursday next after Easter… [w]hereas the sitting of the Judges both of the Kings Bench and Common Pleas do ordinarily begin, it was thought fit that all those of the Bar who are either Goldsmiths or very close to it, should on the Sunday next before the Reading week, put on a Gown of Scarlet Silk throughout the Day and so continue during the Semester there to be observed" ‘Reading week’ was when the Inner Temple, one of the four Inns of Court, held an examination to approve and confer the status of silk. In 1731, the other Inns of Court began to adopt this practice. The ‘old silk gowns’ were made of satin, not silk, and were used by the judges until they were abandoned in 1888, except by the Lord Chancellor and the Lords Justices of the Privy Council. The silk gowns did not appear until later. A 1986 report records that "with rare exceptions silk was not used in the dress of benchers nor indeed, for most of the fifteen centuries of English Judicial history introduced into that of the Judges until 1949, ostensibly for reasons of economy".
A Silk’s Role
A barrister appointed Queen’s Counsel is often referred to as a ‘silk’, a term that references the silk gown which is worn by those barristers who have been appointed to the rank of QC.
QCs are senior advocates who are recognised for their quality of advocacy. It is largely accepted that a silk will be able to demonstrate a proven track record of excellence in advocacy, the reputation of their practice and their professional standing, whether they are practising as a generalist or a specialist in a niche field. Their experience may be both in front of and away from the Court.
Although QCs may often compete for brief opportunities against otherwise successful barristers without the designation, particularly where the QC’s area of expertise is especially niche. A silk’s success does not mean that they will automatically have a full diary of new work immediately. In particular, a recently appointed silk may find that it takes time for their silk status to work its way through their long establish networks. As such it may typically take up to a year for their appointment to silk to crystallise into success in obtaining new work opportunities.
The silk application process is approximately 2 years in length and involves submission of supporting documentation, attendance at interview and peer review. A quality assurance process, chaired by the head of chambers, is also followed, although the silk’s head of chambers is not a voting member of the panel. Peer review follows a minimum period of 5 years in practice, although there is no upper limit.
To qualify for silk a barrister must fulfil the following criteria:
There are approximately 15 people granted QC status each year and this is capped by the Bar Council. Over the last 10 years this has typically averaged around 45 new QCs per annum. This is a very small number in proportion to the number of practising barristers in the UK. However, the small number of silk appointments has helped to maintain the prestige of the designation at the bar.
Those who are successful in their silk application must pay a once-only fee of £1,500 to the Bar Council. For those unable to afford the fee in full, or to pay it in one lump sum, the Bar Council provides 5 different options for payment which can be made over a period of 1 year.
Becoming a Silk
In order to be eligible to apply for silk, it is necessary to have been eligible to apply to become a circuit judge or a recording judge. Therefore normally either 10 or 7 years of qualifying service is required. Special discretions exist to allow barristers to apply early.
The next step involves being invited to apply for silk through a closed application by the Bar Council. From this application, a shortlist is generated and from that, a panel is selected to interview the candidates. The panel is comprised of 2 senior judges, one lay member of the Bar Council and one senior barrister.
Simply qualifying for silk however, does not mean that it will necessarily be granted. There have been instances where qualifying has been refused by the committee. No reason is given for the decision. It may be for a number of reasons, including, but not limited to, inappropriate behaviour towards clients or other members of chambers or a pattern of conduct that gives cause for concern. In these circumstances, the barrister is given an opportunity to address the committee and hear the reasons why the promotion has been denied in order that it can avoid such behaviour in the future.
One other interesting point worth noting about the silk process is that one of the determining factors in whether silk is awarded, depends upon whether the barrister is a member of a ‘door’ at their chambers. Each door is headed by 2 QCs. This, according to the Bar Council is there to allow junior barristers to develop their own practice, rather than develop a practice alongside a particular QC. This therefore means that some barristers do not have a necessarily equal chance of being awarded silk.
Importance to the Legal Profession
Becoming a barrister is seen a sign of someone of great expertise, and becoming a ‘silk’ is the final seal of approval from their peers as to both their quality as a practitioner and the amount of specialist knowledge they possess in their area of law. Whilst studies conducted into the topic have found that becoming a silk does not necessarily carry with it any increase in the number of cases a barrister is asked to handle, it is nevertheless seen by the legal world as an accolade that sets such lawyers apart from their colleagues . The reputation of the silk therefore means that they are more likely to be given the helm of bigger cases that require a particularly high level of skill, given that judges generally in the UK will prefer to see particular types of cases dealt with by silk barristers rather than their junior contemporaries.
Noteworthy Silks and Their Influence
Some notable barristers who have been appointed silk include the following. Many of them have authorship of leading textbooks in their practice areas or have a relevant academic background.
Robert Jay QC was involved in the "phone hacking" scandal as lead counsel to the Leveson Inquiry into allegations of press standards. His practice is in public inquiries, health and safety investigations and criminal fraud. He appeared for the defendant in what was then the longest-running criminal trial in British history, involving fraud allegations following false accounting at certain hospitals which allegedly arose from changes in hospital funding published in the Department of Health annual accounts. He appeared for 45 suicides in the Hillsborough Football Stadium disaster inquest. He has represented a number of police officers in the home secretary’s police use of force inquiry into deaths in police custody.
The late Richard Wilkins QC was an author, lecturer and leading silks and junior counsel in commercial, tax, employment, and commercial and Chancery court instructions. He was a member of other bodies influencing law, including the General Council of Bar, the Tribunal of Honour of the Council of the Inns of Court, Bar Tribunal Judiciary, Bar Council, the United Kingdom Accreditation Service Ltd, and Immigration Appeal Tribunal. He received instructions in over 400 reported tax cases and advised HMRC, and was for about 25 years, a member of its tax avoidance panel. Also, he was responsible for proposing in the 1960s, the Supreme Court of the United Kingdom (Consequential Provisions) Act 1968.
Charles Flint QC is a barrister of Matrix Chambers, who handles a range of civil law problems, and particularly in financial or commercial contexts. He is noted particularly for his administrative, election and European Union law experience. He presently represents the Leader of the Opposition in the Parliament and is noted for his success in the House of Lords in the infamous "Ochesanu case" which established fines could be challenged in the judicial courts.
Criticism and Controversy
When it comes to silk, not all agree that this system is fair. Questions of diversity have been raised with many in the legal community pointing out that those who were very competent and capable of leading the Bar are not getting the opportunity to do so because of the high prices of silks and the way in which the system plays out. Those who may have been considered for the award of silk are now cast aside at an early age due to the system in place.
Diversity is what has been at the forefront of criticism in regards to silks, wit many people pointing out the lack of females and ethnic minorities within the silks award. Speaking back in 2012, Naseem Malik, senior lawyer at the Islamic Human Rights Commission (IHRC), said: "The appointment of silks has been an old boys club allowed to prosper through patronage, maintained by the circuit system which is elitist and does not reflect the diversity of Britain today."
As well as this, there are constant comparisons made between the silks in Britain and other legal systems around the world where one nationality is favoured above all others. These issues have only been heightened since 2013 when the government announced a rise in the fees for the award of silk. In 2010, the fees cost £5,000 for each individual member of the Bar applying for silk. The fee in 2013 was raised to £6,700, which many argued made it unaffordable to many good candidates who would otherwise be recognised as worthy for the award of silk.
The Future of a Silk Title in British Law
A recent article on the Gazette website pointed out that only 36% of silk appointments for 2015 went to women (19 out of 55) whilst only 53% were new appointments. The news adds to a growing chorus of concern about the future of silk within the British legal system.
The silk appointment is becoming an increasingly archaic device. In an ever more competitive and commercially-driven legal market, a silk appointment can act as a barrier to entry for junior members of the Bar. The traditional silk appointment was largely based on merit, an honour granted to only a select few individuals who had demonstrated excellence within their chosen field whether through advocacy, academic achievement or some other measure. However , the day-to-day duties of a modern barrister (particularly one in private practice) bear little resemblance to advocacy. Most are engaged full-time in the business of running their practice. The administration of a modern chambers takes up an inordinate amount of time whilst the financial pressures of any chambers (modern or otherwise) mean that members must keep their money-making activities, which is invariably advocacy, high up on the agenda. Whilst silk may still be an advantage in terms of the prestige it carries, other than returning to advocacy full-time, for those engaged in the business of a modern chambers the silk appointment is becoming an ideal that few can attain nor afford.