Cheng’s proposal, therefore, is meritorious and seeks to end unjustifiable discrimination between legal officers performing identical or similar duties. Perhaps anticipating resistance from the Bar Association, she has also indicated that any solicitor appointed to silk under her proposal would forfeit the rank on retirement.

This means they would not be able to practise as senior counsel in the private sector after they leave the department, and would not therefore compete with the Bar for work. This breaks with the current arrangement, whereby legal officers who are silks can practise at the Bar on leaving government.

However, Cheng’s proposal has wider implications for the private sector. Many in the Law Society think solicitors who are suitably qualified should also be eligible for appointment as senior counsel.

Since 1994, moreover, solicitors in England and Wales have also been entitled to gain rights of appearance in the higher courts, but there is a crucial difference. Solicitor-advocates, like barristers, are entitled to apply for silk, and two were appointed as Queen’s Counsel in 1997, out of a total of 68. In 2020, out of 116 Queen’s Counsel appointments, six were solicitor-advocates, with 15 having applied.

Although there was originally strong opposition at the English Bar to the idea of solicitor-advocates, this has long since mellowed. There were real concerns that, by challenging the Bar’s monopoly of advocacy work in the higher courts, they would significantly reduce the work available to barristers, thus affecting their livelihoods. Those fears, however, have not materialised, largely because their numbers are not large, and only very few ever become silks.

Indeed, in both Britain and Hong Kong, lawyers who are interested in a career in advocacy invariably elect to become barristers at the outset. In practice, the numbers who choose to juggle the life of a solicitor with front-line advocacy have turned out to be very small. But those who do this, and achieve excellence, should obviously be appropriately recognised in both jurisdictions.

In Hong Kong, the arrival of even a small number of solicitor-advocates has been beneficial. As things stand, the Bar Association’s Code of Conduct states that, with several exceptions, a barrister “may not act, whether for a fee or otherwise, in a professional capacity except upon the instructions of a solicitor”. This means that a litigant has to pay the costs of both a barrister and solicitor, even if this is not strictly necessary, which is hard to justify.

When a solicitor-advocate is instructed, however, this situation can be avoided. He or she can handle the case from start to finish, and this cuts out the need to retain a barrister, which makes access to justice less expensive. If a solicitor-advocate is deemed capable of conducting a case all the way up to the Court of Final Appeal, he or she, in common fairness, should be eligible to take silk.

At the ceremonial opening of the legal year in 2015, then Law Society president Stephen Hung Wan-shun called for qualified solicitors to be allowed to take silk. Although the legal world at the time was said to be considering the suggestion, little appears to have happened since.

The Bar Association has launched a month-long consultation exercise over Cheng’s proposal. Although the proposal will hopefully be endorsed by both the Bar and the judiciary, it will only resolve the immediate anomaly faced by the department’s legal officers. The situation, however, of the Law Society’s solicitor-advocates is also unsatisfactory, and will also require redress.

Grenville Cross SC is a criminal justice analyst