Appointment of Queen's Counsel in Scotland 2021
A report by Bill Thomson, an independent observer that has been engaged by the Scottish Government to report on the fairness and objectivity of the process for the Appointment of Queen's Counsel in Scotland.
The Lord Justice General is solely responsible for determining which of the applicants should be nominated to the First Minister for appointment by Her Majesty The Queen. Holders of that office are, of course, particularly well placed to make such decisions.
In making his assessment, the Lord Justice General is assisted by the views of other judges. Copies of the applicants' self-assessments are made available to the members of a scoring panel comprising the Lord Justice Clerk and eight other judges from the Inner and Outer Houses. Judges on the scoring panel are invited to express an opinion on each applicant's fitness for nomination against the following scale:
A - Well fitted for Silk now and sufficiently outstanding to merit appointment this year
B - Possibly ready for Silk now but not in the front rank of applicants for appointment this year
C - Not obviously fitted for Silk at present
D - Not fitted for Silk
P - This application is premature
N - No sufficient knowledge of the applicant to express a view.
Copies of the applicants' self-assessments are also available to all other judges in the Inner and Outer Houses who can submit:
P - Positive comments in support of Silk
N - Negative comments
U - Unable to comment due to insufficient knowledge of applicant.
The Lord Justice General also conducts a detailed assessment of each application, including checking the reports of cases cited in the self-assessments, and of the references. The opinions of judges on the scoring panel are carefully considered but are not regarded as binding. The judges submit their opinions but do not normally meet as a scoring panel. Likewise, the weight of opinions expressed by other judges is taken into account, but is not in itself a conclusive factor.
The Lord Justice General has decided to recommend for appointment 11 of the advocate applicants and one solicitor advocate. Four of the successful advocates are female. Seven are male, as is the successful solicitor advocate. Compared to previous years, the success rate of female applicants is high at 80%. However, given the gender balance amongst the applicants, the overall percentage of successful applicants who are female is only 36%.
Amongst the successful applicants, there were only five who received one or more A scores from members of the scoring panel. All received P scores from other judges. The total number of P scores varied from four in the case of two of the successful applicants to 11 in the case of two others. Three were also marked as N by one or more of the judges.
Another factor taken into account was an observation from the Dean of the Faculty of Advocates that there was a shortage of QCs who specialise in Family Law and in Criminal Defence work. The Faculty is the only body consulted as to the need for appointments.
Feedback is given by the Lord Justice General to all unsuccessful applicants. Prior to 2020, feedback was only given when requested. Since then, it has been given to all who are not successful and includes a level of detail which is intended to be constructive for any candidate who may wish to apply again. In addition, the Lord Justice General has indicated his willingness to meet any applicant who wishes to discuss their application with him.
Four of the successful applicants have applied previously, as have four of the unsuccessful applicants.
The Lord Justice General consults with the Dean of the Faculty of Advocates, the President of the Law Society of Scotland and the Lord Advocate before submitting his nominations to the First Minister. Letters were issued on 30 June. The principal purpose of this final consultation is to ensure that no issues relating to the professional quality of the proposed nominees has been missed in the assessment process. No such issue has been raised.
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