Queen's Counsel
Encyclopedia : Q : QU : QUE : Queen's Counsel
Queen's Counsel (postnominal QC), during the reign of a male sovereign known as King's Counsel (KC), are, in England, Wales and Northern Ireland, barristers, or in Scotland advocates, appointed by letters patent to be one of "Her Majesty's Counsel learned in the law". They do not constitute a separate order or degree of lawyers. They are, however, more than merely a professional rank, as their status is conferred by the Crown and recognised by the courts. In order to join the Counsel one generally has to serve as a barrister for at least 15 years.
Queen's Counsel have the privilege of sitting within the Bar of court, and wear silk gowns of a special design (hence the informal title Silks). See Court dress.
History
England
The Attorney-General, Solicitor-General, and King's Sergeants were King's Counsel in Ordinary in the Kingdom of England. The first Queen's Counsel "Extraordinary" was Sir Francis Bacon, who was given a patent giving him precedence at the Bar in 1597, and formally styled King's Counsel in 1603 (W. S. Holdsworth, History of English Law (1938) vi 473-4; Patent Rolls, 2 Jac I p 12 m 15).The obsolete rank of Serjeant-at-Law was formerly more senior, though it was overtaken formally in the 1670s, and professionally in the course of the late eighteenth century by the newer rank. The Attorney-General and Solicitor-General, had similarly succeeded the King's Serjeants as leaders of the Bar in Tudor times, though not technically senior until 1623 (except for the two senior King's Serjeants) and 1813 respectively (JH Baker, "The English Legal Profession 1450-1550" in Wilfred Prest (ed), Lawyers in Early Modern Europe and America (1981), 20). But the Queen's Counsel only emerged into eminence and integrity in the early 1830s, prior to when they were relatively few in number. It became the standard means of recognising that a barrister was a senior member of the profession, and the numbers multiplied accordingly (Daniel Duman, The English and Colonial Bars in the Nineteenth Century (1983) 35.) It became of greater professional importance to become a QC, and the serjeants gradually declined. The QCs inherited not merely the prestige of the serjeants, but enjoyed priority before the courts.
Queen's Counsel and serjeants were prohibited, at least from the mid-nineteenth century, from doing chamber work. They were briefed together with a junior barrister, and they had to have chambers in London (Duman 98-99). Until 1920 in England and Wales they had to have a licence to appear in criminal cases for the defence. On appointment, QCs renounced the preparation of written pleadings and other chamber practices.
Queen's Counsel were traditionally selected from barristers, rather than from lawyers in general. This was because they were counsel appointed to conduct court work on behalf of the Crown. Although the limitations on private employment were gradually relaxed, they continued to be selected from barristers, who had the sole right of audience to the higher courts. However, in 1994 solicitors of England and Wales were entitled to be admitted to the upper courts. Some 275 were so practising in 1995. In 1995 these solicitors alone became entitled to apply for appointment as Queen's Counsel. The first such was appointed March 1997 (On 27 March 1997, of the 68 new QCs announced, two were solicitors. These were Arthur Marriott (53), partner of the London office of the American law firm of Wilmer Cutler and Pickering, and Dr Lawrence Collins (55), a partner of the City law firm of Herbert Smith who was subsequently appointed as a High Court Judge.
The first women to be appointed as King's Counsel were Helen Normanton and Rose Heilbron in 1949.
The appointment of further Queen's Counsel was suspended in 2003 and it was widely expected that the system would be abolished, although existing QCs were not affected by the suspension. However, a vigorous campaign was mounted in defence of the system, including those who supported it as an independent indication of excellence valued by outsiders who did not have much else to go on, and especially foreign commercial litigants, and those who contended in a letter to The Times in London that it was a means whereby the most able barristers from ethnic minorities could overcome prejudice. The Government's focus then switched from abolition to reform and, in particular, reform of the much-criticised "secret soundings" of Judges and other establishment legal figures upon which the old system was based, which was said to be inappropriate and unfair given the size of the modern profession, a possible source of improper Government patronage (since the final recommendations were made by the Lord Chancellor, who is a member of the Government) and discriminatory against part-time workers (especially women) and ethnic minorities.
In November 2004, after much public debate in favour of retaining the title (see for example http://www.dca.gov.uk/consult/qcfuture/responses/qc332.pdf) it was announced that appointments to the title of Queen's Counsel in England would be resumed but that future appointees would not be chosen by the government but by a nine-member panel, chaired by a lay person, which will include two barristers, two solicitors, one retired judge and three non-lawyers (see [link]). Formally, however, the appointment remains a royal one made on the recommendation of the Lord Chancellor as before, but the Lord Chancellor no longer comments on the individual applications put forward by the independent panel, and merely supervises the process and reviews the recommendations in general terms (for example, keeping an eye on the number appointed, and on the extent to which the process appears to be fair and efficient).
Application forms for appointment under the new system were released in July 2005 and the next round of appointments is due to be announced in July 2006, after which further appointments will be made annually, as before. Successful candidates attend a Silk Ceremony in Westminster Hall at the beginning of the legal year in October at which they make a declaration and receive their letters patent from the Lord Chancellor.
Scotland
In Scotland, where the independent Bar is organised as the Faculty of Advocates and its members known not as barristers but as advocates, the position of Queen's Counsel was not recognised before 1868. Initially the status was reserved first for law officers (Lord Advocate and Solicitor General for Scotland) and soon after for the Dean of the Faculty of Advocates.In 1897 a petition by the Faculty of Advocates for the establishment of a Scottish roll of Queen's Counsel was approved and the first appointments were made later in that year.There are now about one hundred QCs in practice in Scotland, about one-fifth of the practising Bar. The appointment of Queen's Counsel is made on the recommendation of the Lord Justice General to the First Minister of Scotland, formerly the Secretary of State for Scotland. In the 1990s, it became possible for solicitors with rights of audience in the Court of Session or High Court of Justiciary to apply for appointment, and two or three have done so. A solicitor advocate who is so appointed is correctly designated as "Queen's Counsel, Solicitor Advocate".
Northern Ireland
The title of QC remains, but in 1998 two Northern Irish nationalists (Seamus Treacy and Barry Macdonald) opposed the requirement of swearing an oath of allegiance to the Crown (Queen Elizabeth II during her reign). The Bar Council (the body which represents barristers' interests) had agreed (in the Elliott report) that the royal oath should be dropped and replaced by a more neutral statement. It suggested that, instead of declaring their services to Queen Elizabeth, barristers should "sincerely promise and declare that I will well and truly serve all whom I may lawfully be called to serve in the office of one of Her Majesty's Counsel, learned in the law according to the best of my skill and understanding" (see [link]).
In 2000, the Northern Ireland High Court ruled in the barrister's favour, and after considerable wrangling the men were permitted to make "a more neutral statement" (presumably the one indicated above).
In 1997 the Lord Chief Justice, Sir Robert Carswell, wrote "I have little doubt myself that this is all part of an ongoing politically-based campaign to have the office of Queen’s Counsel replaced by a rank entitled Senior Counsel, or something to that effect" (see [link]).
Hong Kong
In Hong Kong, Queen's Counsel was referred to as 御用大律師 in Hong Kong Cantonese. The rank has been replaced by Senior Counsel (SC) (資深大律師) since the handover of Hong Kong to China in 1997. The SC who had achieved the rank of QC before the handover might keep the use of QC in addition to SC in their title.Today
Queen's Counsel are retained in several Commonwealth Realms where Queen Elizabeth II is head of State. Elsewhere the style is now Senior Counsel or State Counsel.In Commonwealth countries that have become republics, the office of Queen's Counsel has generally been retained, though with a new style becoming Senior Counsel in South Africa, Trinidad and Tobago and Guyana, Senior Advocate in India and Bangladesh, and President's Counsel in Sri Lanka.
In Australia, all State governments except South Australia have replaced the title with Senior Counsel, and only South Australia and the Northern Territory continue to appoint Queen's Counsel. In the other Australian states those appointed before the change may retain the old title. In 2006 the title was renamed Senior Counsel in New Zealand.
The practice of appointed Queen's Counsel has also fallen into disuse in much of Canada where the two largest provinces, Ontario and Quebec, ceased making appointments in 1985 and 1976 respectively and the federal government ceased the practice in 1993. No substitute distinctions have been implemented in these jurisdictions as it is felt that the practice is a form of political patronage and is best discontinued entirely. However, title holders continue to use the QC postnominals.
External links
http://www.dca.gov.uk/consult/qcfuture/responses/qc332.pdf- [Queen's Counsel - Historical Context] a paper written in 2001 for the Nova Scotia Barrister's Society reviewing the history of the QC and current practices throughout Canada and the Commonwealth.
- [Guardian 2004-04-10: QC system replaced by new scheme after 400 years]
- [Guardian 2004-05-28: U-turn lets QC title live on for now]
- [Website of the new English QC appointments procedure]
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