Appointment of King's Counsel and Honorary King's Counsel in Scotland 2026. Report by Keith Connal, Independent Observer

Appointment of King’s Counsel in Scotland 2026 Report by Keith Connal, Independent Observer

Introduction

The appointment of King’s Counsel in Scotland is made by His Majesty the King on the recommendation of the First Minister, who seeks nominations from the Lord Justice General.

The Lord Justice General invites applications from suitably qualified advocates and solicitor advocates. The application process and assessment criteria are set out in a Guide for Applicants available from the Judiciary of Scotland website.

An Independent Observer is appointed by the First Minister to provide assurance that the appointment process is fair and transparent, by reviewing all applications, assessments, references and other relevant documents and discussing the process and outcome with the Lord Justice General ahead of the nominations being submitted.

2026 Appointment Round

On 20 January 2026, the Lord Justice General, The Right Hon. Lord Pentland, intimated to the First Minister that he would like to commence the process for the appointment of King’s Counsel (and Honorary King’s Counsel) for this year and that, as in past years, it would be his intention to introduce the new appointees at the Opening of the new Legal Year in September.

The First Minister replied on 5 February agreeing to these appointment rounds proceeding.

The Guide for Applicants explains that there is no fixed quota of King’s Counsel to be appointed at any time and that the Lord Justice General endeavours to ensure, in the interests of the public, clients and the courts, that an adequate number of King’s Counsel generally, and in specific areas of specialisation, is maintained. To inform the appointment round, each year the Lord Justice General discusses with the Dean of the Faculty of Advocates whether there is a shortage of King’s Counsel with certain specialisms: none were identified this year.

An advertisement was issued on the Judiciary of Scotland website and via the Law Society of Scotland, Scottish Legal News and a Judicial Office for Scotland post on LinkedIn, on 27 February 2026. Notice was also sent to the Faculty of Advocates, the Society of Solicitor Advocates and the Law Society of Scotland. This is less publicity in comparison with many public appointment arrangements, but it is in line with recent practice and is appropriate given the relatively limited field of potential applicants.

Separate application forms were provided for advocates and solicitor advocates. These require applicants to complete a self-assessment with details of their experience and capabilities against the criteria in the Guide for Applicants and to set out why they consider themselves suitable for appointment. The three criteria in paragraphs 3.2 to 3.5 of the Guide are: Advocacy; Legal Ability and Experience; and Professional Qualities.

In 2024, changes were introduced to the Legal Ability and Experience criteria to recognise that, with changing practices in the courts, junior counsel have less opportunity than in the past to undertake appellate work: there now being more reliance on written submissions, with senior counsel increasingly being instructed to appear alone to make the oral submissions; the Sheriff Appeal Court now dealing with the majority of criminal appeals; and there now being far fewer reparation cases heard by the Divisions of the Inner House.

In 2025, the role of the Sheriff Appeal Court was reflected by adding the President of the Sheriff Appeal Court to those sent a list of candidates and asked to provide comment on any known applicant (paragraph 4.10 of the Guide refers). No changes to the Guide were made this year.

Commencing at the start of 2026, a change to Inner House practice was permitted by the Lord Justice General to allow junior counsel, when appearing at a Summar Roll hearing with senior counsel, to have the opportunity to advance part of the oral argument. The Lord Justice General believes this could encourage junior lawyers, whether advocates or solicitor advocates, to develop their skills.

All applicants were required to obtain two references from senior members of the legal profession fully familiar with their work: 82% were provided by members of the judiciary; 18% by King’s Counsel colleagues. A form to help structure comments against the criteria was used by most (80%) of the referees. Applicants were asked to complete a confidential Equalities Monitoring Form which is detached and not used in appointment decisions. The closing date for applications was 24 March and contact details in the Lord Justice General’s Private Office were provided for enquiries.

Applications

A total of twenty-five applications were received: twenty-two from advocates and three from solicitor advocates. This compares with a total of twenty-eight applications in 2025, thirty-two applications in 2024 and twenty-five in 2023.

From information available to me, seven of the advocate applicants have applied before - six in 2025 (one of whom also applied previously) and one in 2024. Of the solicitor advocates, one has applied before, in 2025 and also in 2024.

Eight of the advocate applicants are female (8/22, 36%). This compares with seven female advocates applying in 2025 (7/23, 30%), 10 in 2024 (10/25, 40%), 5 in 2023 (5/22, 23%) and 8 in 2022 (8/24, 33%). The percentage of female advocate applicants this year is a little above the percentage of practising female advocates (29.5%, 134/454), using Faculty numbers for 2025/26.

One of the solicitor advocate applicants is female. This compares with no female solicitor advocates applying in 2025, four in 2024 and none in 2023.

Assessment

The Lord Justice General is solely responsible for determining which applicants should be nominated for appointment. He conducts a detailed assessment of each application, including checking any reported cases that are mentioned, and considers the references.

The Lord Justice General is assisted by the views of all the Senators of the College of Justice (the judges sitting in the Court of Session and in the High Court of Justiciary) and, since last year, also the President of the Sheriff Appeal Court; and there is a Scoring Panel comprising the Lord Justice General, the Lord Justice Clerk and, this year, three other Inner House judges and two Outer House judges who consider the applications in detail and help the Lord Justice General decide on nominations. Details of the Scoring Panel are in paragraphs 4.8 to 4.10 of the Guide for Applicants.

All judges are provided with the applicants’ self–assessments and are invited to indicate if they have knowledge of their performance in court and other settings and, if so, to express an opinion on their fitness for appointment as King’s Counsel.

Members of the Scoring Panel use a form to record scores on a five-point scale for the three selection criteria (from very well demonstrated to not demonstrated), to comment on an applicant’s suitability for appointment and to provide an overall assessment, unless the applicant is not sufficiently well known to them or they consider the application is premature. The assessment can be that an applicant is already well fitted for appointment and sufficiently outstanding to merit appointment this year; possibly ready for appointment but not in the front rank of applicants for appointment this year; not obviously fitted for appointment at present; or not fitted for appointment.

The Scoring Panel met on 15 June. The minutes record that the Lord Justice General’s assessment of each applicant was circulated in advance and that it had been considered; and that each applicant was discussed fully, in order of the numbered applications, to consider their suitability for appointment.

Nominations

The Lord Justice General is nominating a total of sixteen applicants: fourteen advocates and two solicitor advocates, which is an overall success rate of 64%. This compares to overall success rates in recent years of 39% in 2025, 56% in 2024, 60% in 2023 and 64% in 2022.

Of the seven advocates who have applied previously, five are being nominated; and the one solicitor advocate who had applied previously is being nominated.

Of the eight female advocates who applied, five are being nominated (63%) and of the fourteen male advocates who applied nine are being nominated (64%).

The one female solicitor advocate applicant this year is being nominated; and one of the two male solicitor advocates is being nominated.

Figures collated in the office of the Lord Justice General show that over the most recent ten-year period, including this year’s round, the average success rate amongst members of the Faculty of Advocates has been 56% for female applicants and 51% for male applicants.

From the latest Faculty of Advocate numbers (2025/26), of 149 practising King's Counsel 38 are female (25.5%) and the percentage of practising advocates that are female is 29.5%. Based on the information available for this year’s round and taking account of figures from recent rounds, I am satisfied that there is no obvious bias for or against male or female applicants. There is insufficient information for conclusions to be drawn in relation to other protected characteristics.

Written feedback is provided by the Lord Justice General to unsuccessful applicants. This is intended to be constructive for any applicant who may wish to apply again. There is evidence in the Lord Justice General’s assessment of applicants this year that some have taken such feedback on board, made efforts to strengthen their application and been successful.

The Lord Justice General consults with the Dean of the Faculty, the President of the Law Society and the Lord Advocate before submitting his nominations to the First Minister. This principally is to ensure that no issues relating to the professional conduct of the nominees have been missed in the assessment process. No such issues were raised.

Observations

Although the King’s Counsel nomination process differs from arrangements for public appointments by the Scottish Ministers under the Code of Practice for Ministerial Appointments to Public Bodies in Scotland, and the pool of potential applicants is limited and specific to a singular field of practice, it is a thorough and rigorous process that has been honed over recent years.

Breadth and depth to the process is being achieved through the provision of clear guidance for applicants, the use of detailed application forms and requiring two references, all Senators of the College of Justice and the President of the Sheriff Appeal Court being asked for comment, the Lord Justice General undertaking a detailed assessment of each application, the other Scoring Panel members assessing suitability for appointment and the Panel meeting to carefully consider each application. I remain of the view that deciding on nominations without interview is appropriate and proportionate.

Matters I discussed with the Lord Justice General included his overall impression of this year’s appointment round, the extent to which any of the decisions on nominations were made on balance, the response by some applicants to feedback from a previous application, and the consideration given to applicants who have not practiced in the superior courts in Scotland for at least thirteen years but who have relevant prior experience.

The discussion was informed by the Lord Justice General’s assessment of the applicants, the Scoring Panel’s assessments and the considerations and decisions captured in the minutes of the Panel’s meeting.

The Lord Justice General considers the appointment process to be robust and fair and that it benefits from the collective views of the wider judiciary and the detailed consideration by the Scoring Panel - which he noted is able to stand back and consider applicants’ overall merits against the criteria, including carefully weighing the assessments by the wider judiciary.

The Lord Justice General commented that he considers public service by aspiring King’s Counsel to be important, including time in the Crown Office where relevant. As this is not referenced in the Guide for Applicants, I suggest that consideration be given to adjusting the criteria in Section 3 to indicate that public service in some form is desirable though not essential.

Although, in contrast to recent years, the absence of advocates from courts due to extensive involvement in Public Inquiries did not feature in this year’s applications, the Lord Justice General said that the Guidance for next year will be revised to refer to experience gained by advocates involved in Public Inquiries. It may also refer to the recent change to Inner House practice.

Honorary King’s Counsel

The process to appoint Honorary King’s Counsel (to recognise those in the legal profession who have made a major contribution to the law of Scotland or the profession and how it is advanced, outwith practice in the courts as an advocate or solicitor advocate) again ran in parallel with the King’s Counsel appointment round. Nominations this year were considered by a panel comprising the Lord Justice General, the Dean of the Faculty, an academic from the University of Edinburgh Law School and the President of the Law Society. The new Honorary King’s Counsel will be introduced alongside new King’s Counsel at the Opening of the new Legal Year in September.

Conclusion

I have examined the applications for King’s Counsel and the related documents and discussed the process and its outcome with the Lord Justice General. I am satisfied that the arrangements are fair and thorough and that the nominations being made to the First Minister are based on merit.

I am grateful to the Lord Justice General’s private office for their courtesy and support throughout my review and to the Lord Justice General for his time meeting me.

Keith Connal

6 July 2026