This is my third report to the First Minister of Scotland as the Independent Observer of the appointment of Queen’s Counsel in Scotland. I was initially appointed on 12 May 2018 and have previously submitted reports for the years 2018 and 2019. I have now reviewed the process of appointment for the current year and submit this report of my findings and recommendations to the First Minister for the year 2020.
As noted in my previous reports, I was formerly the Regional Tribunal Judge in Scotland for Social Security Appeal Tribunals for 16 years until my retirement in 2018. In my role as the Independent Observer I have applied my previous training and professional experience of appointment processes and equality issues gained during my working life through my involvement in the Lord Chancellor’s appointment process and through the Judicial Appointments Commission.
The Queen’s Counsel appointment process is well established and in preparing this report I have had regard to the reports of my predecessors in Scotland and also considered the appointment process applying in England and Wales together with recent consultation documents.
The Guide at paragraph 1.2 indicates that the rank of QC is “primarily a mark of distinction in advocacy when combined with other qualities.” The process therefore does not include those candidates where the rank of QC may be awarded on an honorary basis. In my report for 2019, I highlighted a lacuna in the Scottish system where there was no recognised process for those meriting an honorary QC ranking. This contrasts with the position in England and Wales where there is a nomination scheme, similar to that of the honours system, and I set this out in full in my previous report. It is therefore disappointing that, partly due to changes in key personnel, progress on developing a similar system in Scotland has been slow and a suitable procedure is yet to be finalised. I have been assured that work on this is now underway and should be concluded before the end of the year. I fully accept that the working conditions in the last few months have been exceptional due to the lockdown period and that this has impacted on the progress of matters which were not urgent.