The Meaning of “Silk” in the Legal World
In British legal contexts, "silk" or "taking silk", is short for "taking the Queen’s/King’s Silk". This refers to the process when a barrister applies to become a Queen’s Counsel (QC), a more senior position. While only around 10% of barristers become QCs, in 2010, the British government began instituting a system that initially delayed the appointment of QCs until they had served for at least three years. An appointment to QC or SC (Senior Counsel) was granted without selection from the panel in 1977 for civil cases and 1987 for criminal cases in Northern Ireland. For Northern Ireland and Ireland, as well as in Canada and a few other Commonwealth countries, the term "Queen’s Counsel", or "Senior Counsel" in Commonwealth nations that became republics, is still used.
The barrister’s gown is typically identified by its thin single silken stripe that runs from the shoulder to the wrist . The first recorded use of "taking silk" was in 1596 when Sir Henry Thynne was appointed the first QC. Prior to this, being known as "the leading counsel" was the most prestigious position a barrister could hold. Even though the rules and conventions about use of "silk" have changed, the title continues to be used, because barristers who have "taken silk" are still recognized as more experienced than those who have not.
Even though "silk" sounds like an awarding of rank similar to knighthood, QCs are not actually officers of the order. Judges may be members of the order, but judges in most common law jurisdictions are appointed or elected in a more traditional manner. Some senior judges may be addressed as "silk" or "King’s/Queen’s counsel." In some jurisdictions, solicitors may also be made special honorary QCs, but this is extremely rare. As well, if a barrister is elevated to the peerage by being made a baron or viscount, they are given the title "Lord".
History of the Silk in English Law
Historically, the term ‘Silk’ derives from the ecclesiastical dress worn by Chancellors, who were the senior judges in England from before the twelfth century. Chancellors would produce ‘silken’ garments for their own use, from the silk of worms that they reared. By the reign of King Edward III in 1344, the term had come to be used exclusively for the holders of the office of Chancellor. By the fifteenth and sixteenth centuries, it was applied to senior members of the Bar who had acted as Counsel to the King and were therefore entitled to wear robes of a certain colour and thus earned the sobriquet ‘Silk’.
Until the nineteenth century, advocates for the King were appointed on an ad hoc basis but in the late nineteenth century, the rule changed to require Counsel to the King to be tenants of the four Inns of Court. The appointment of Silk would act as a mark of honour just as it was an ecclesiastical honour granted by the Pope or Papal Legate to one who has made a special contribution to the Catholic church. In 1637, Sir Edward Coke made reference to the honour in ‘The Third Part of the Institutes of the Laws of England’ and in 1791, the title was formally recognised as Silk when George III granted the Royal warrant for the creation of the rank of Queen’s Counsel (QC). This practice continues today and the development over the centuries to the practice now adopted is well recognised and understood.
In 1540, the Court of Session, which had previously operated on the basis of older Scottish law, began the process of applying the law as administered in England into Scots law. For instance, in ‘Stewart v St Clair’ of 1546, the Court introduced the substantive English law of assault to the Scots law of battery in order to provide redress to the victim. The process of creating a law of England applied to Scots law continued and in 1594, the coat of silk was introduced to the Scots Bar and First Ward of the College of Justice; an honour which was originally given to an individual, the honour later extended to those who met the requisite standards. By 1826, the date is considered to be the equivalent start date for Silk in Scotland with seven individuals receiving honour that year. But the practice in Scotland was somewhat different; the first was a Royal Warrant issued by Queen Victoria and grants of the honour were made by the Lord Chancellor, who normally received advice from the Lord Justice Clerk, who would consult with the Judges of the Court of Session. The Lord Justice Clerk would be the sole Judge making the recommendation to the Chancellor, who would then make the appointment. It was only in 1883 that recommendations began to come from a committee of judges in the Court of Session and in 1992, this committee was expanded to include legal experts, solicitors and representatives of the public.
Process for Becoming a Silk
The process of becoming a Silk, or a Queen’s Counsel, is often talked about but less frequently disclosed. In order to become a Queen’s Counsel the present criteria, as set out by the Bar Council and the Judicial Appointments Commission (each deciding in their own cases), require an applicant to satisfy the following conditions: To be considered on each of those criteria the applicant must provide the following material: All applications are subject to a sift stage to determine if sufficient evidence of merit is provided under each of the five criteria. Nothing more than an excessive number of newspaper clippings, or even numbers of instances in which an applicant acted for a very well known client, will get past the sifting stage. As a consequence of the sifting stage only about half of the applications which are submitted end up being assessed under the selection criteria. The assessment process involves both a paper-based index marking of the material submitted and interviews conducted by current Silks in the specialisms in question. At the interviews two Quality Assurance monitors are also present. Once the results of the index marking exercise are disclosed the applicant will generally be invited to give a presentation and answer questions on their practice.
Duties of a Silk
A silk is generally expected to act in a manner commensurate with their status. Accordingly there will be an expectation that the silk will lead and remain in full command of the case. An experienced practitioner can be instructed by clients in many different cases at once. The silk will therefore have a level of experience that enables him or her to manage complex litigation, or a number of trials advocating efficient time-management. A silk should have the ability to deliver a secure lead. Senior partners and clients will have the confidence to allow a silk to take the lead in less experienced junior barristers, who may benefit from the supervision and guidance of an experienced counsel.
A silk must be able to recognize the limits of their knowledge and practice and seek appropriate counsel where necessary. A silk will also be expected, in appropriate cases, to take a career development role by passing on their knowledge and insight to junior barristers. This can be through brachiating (where a silk goes up a few levels to someone more senior to develop their case); mentoring (where a junior is recommended to a silk with particular experience); and encouraging junior barristers to take on work with them.
Meaning When Someone Wears a Silk Gown
The tradition of wearing silk to signify seniority is still preserved in the UK. The fact that a barrister wears only silk robes whilst appearing before the Court is symbolic of their senior status and subject to its own etiquette.
However, not every barrister sporting silk is entitled to quite the same degree of respect in the eyes of the Court. Simply obtaining the status of Queen’s Counsel (now sometimes known as King or Queen’s Counsel) is an achievement, but not always a goal. Those who obtain the honour enjoy judicial recognition by the Chief Justice of England and Wales and the Lord Chancellor.
In modern times, name alone is not enough; shortened titles may be insufficient to indicate one’s status. E.G. QC for Queen’s Counsel, however, it does seem that Q.C. is now an accepted abbreviation. Even if QC or KS is not used, by convention, the prefix "H" (standing for "Honorary") used to distinguish those appointed in their capacity as County Court judges is capitalised.
The origin of the distinction between silk and robes paid to least senior barristers can be traced back to the 1340’s and has been codified in the 1730’s when such titles have become the standard today.
Tradition has moulded the current practices. Silk and plum are now synonymous with senior standards. Senior barristers were once regarded as the elite of the Bar and wore violet silk gowns which were embellished with plum from their shoulders to their wrist. This flawed the colour into the edges of their black robes.
The robe itself, a necessary adornment regardless of the quality of a barrister’s gown, began as a black cloth lined with scarlet. At the same time, the cloth gradually became heavier and finer, until it became a silk satin .
While advocates’ gowns were a formal requirement of the Courts and remain so today, even though they are no longer considered of particular importance, they were once a reflection of the very prestige of the profession in the 17th century.
As previously mentioned, it became conventional for those of higher rank to distinguish themselves by wearing robes made of silk and those of lower status to wear black cotton or woollen robes.
Color himself acknowledged the significance of the silk gown, having been given one by William Tyndale who he regarded as his mentor, a sign of his acceptance as a senior barrister.
Silk represents an artificial and sophisticated procedure in law, where the clergy dressed in wool in accordance with the Bible’s dictate. However, over the years the differences between silk and woollen gowns dwindled, and all barristers now wear only the silk gown.
As professional business is now a firm affair, more common in non-traditional law firms, clients question whether it is right to wear court attire. Still, the answer to this question is most certainly that court attire should become compulsory. The principle of not donning silk in the absence of reason however, remains important, underscoring the link between silk and tradition.
The ceremonial aspect of silk robes should not be overlooked either, as years of tradition and value have been passed down through the ages, lasting generations.
Whilst it is often said "that silk is gilded etc, etc", when silk is worn the court attributes considerable value to the advocacy and the advocate himself. The entire practice is marked by its silk nature because of its emphasis and continued regulation by this code of tradition.
In summary, although the gender of judges may have changed and gender-confident language is vital, the value of silk remains.
Effects on the Legal Profession
The influence of silks – the Queen’s Counsel – impacts every barrister and solicitor in the UK. About 10% of solicitors are self-employed and refer to themselves as ‘solicitor-advocates’. They employ their own advocates for cases where one is needed. Nearly all barristers are self-employed and work in partnership at barristers’ chambers. From these chambers the top ten percent become silk. In fact, 45% of the judges of the Supreme Court are former QCs.
Those who have gained silk have the respect of their peers both in chambers and silks. It is said that silks are experts in their field with the experience and therefore the wherewithal to make pronouncements that influence judges. A silk will influence outcomes as much as the quality of their argument. So from the start of a case, there are a more or less good guess on the result. Silks are not infallible but they will be able to approach cases and statutes with an understanding that years of experience has given them. As discussed above, this opinion is sought and will not be biased or held back regarding any weaknesses.
Juries will focus much of their attention on the silk especially during the summing up. About 20% of cases go to juries and barristers from the silk side also work as criminal prosecuting counsel.
In England and Wales, QCs argue the law in more than 80% of civil cases and nearly 90% in serious criminal matters.
It is a little known fact that QCs are not appointed just for high court cases, which operate at the High Court, Crown Court and County Court. They will appear in tribunals, magistrates’ courts and other forums. They must demonstrate recent experience of these other units.
Future of Silks
The role of a Silk in the 21st Century is evolving. In commercial law, the increasing globalisation of the world’s economies means that more and more counsel are being instructed from overseas, and that the market for dispute resolution is much broader. Because of this, the need for the right kind of counsel has become much more complex.
Stylometry and big data are on the rise. Stylometry is the act of identifying a person on the basis of their writing style, regardless of the content. In legal practice, this may be employed tactically – a lawyer may seek to identify those judges who write in the manner most likely to appeal to the ultimate decision-maker in a particular case. A 2010 judicial study revealed that "the writing styles of judges were quite dissimilar, and that there was no tendency for these styles to converge the longer the judges sat on the bench". More work needs to be done in relation to counsel’s writing, but the research clearly points to the possibility that various judging styles exist across the High Court and Courts of Appeal, such that the manner in which an advocate imparts their case may have a direct impact on the quality of their submissions for the client. The extent to which new technology will drive legal practice, and the development of advocates in particular, is still to be seen.
The number of silks called by the Bar in 2016 was the lowest recorded for 19 years, with only 106 applications approved . Some have put this down to Brexit, from which there are signs that the economy is returning to pre-referendum levels. Popular speculation amongst the Bar is that even if the economic downturn brought about by Brexit caused a decrease in Silk calls in 2016, its impact on 2017 remains to be seen, and this year’s numbers should be more telling. The changes in Silk patterns, however, do not appear to have led to any increase in the overall number of vacancies – in other words, the average ratio of early QC – including waiver, part-time, returning and honorary sillk – to full-time QCs in respect of all civil cases has remained fairly stable.
Due to the small pool of successful applicants, Silks are in constant demand, and the work they do for clients is extensive. It therefore comes as no surprise to see the profession speaking out on the issue, with sections of the Bar Council referring to the Silk call as "unresponsive to the needs of practitioners, the requirements of the courts and the requirements of clients". That said, the future may not be all doom and gloom: a panel of Queen’s Counsel at an Inner Temple "Silks in the Modern World" event in August 2016 concluded that "if not unrecognisable, many barristers do not appear very different from the counterparts of 20 years ago". Indeed, the very ethos of the Bar – respect the client, work hard, get the job done well – remains.