Queen's Counsel (postnominal QC), known as King's Counsel (postnominal KC) during the reign of a male sovereign, are lawyers appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law. Membership exists/existed in various Commonwealth countries around the world (and sometimes replaced by the term Senior Advocate in certain jurisdictions) and it is a status, conferred by the Crown, that is recognised by courts. (In case of Senior Advocates however, the same is conferred by the Higher Courts). Members have the privilege of sitting within the Bar of court.
As members wear silk gowns of a particular design (see court dress), the award of Queen's or King's Counsel is known informally as taking silk. Appointments are made from within the legal profession on the basis of merit rather than a particular level of experience, however successful applicants tend to be solicitor advocates, barristers, or (in Scotland) advocates with 15 years or more experience.
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The Attorney-General, Solicitor-General, and King's Serjeants 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.[1][2]
The new rank of Queen's Counsel contributed to the gradual obsolescence of the formerly more senior Serjeant-at-law by superseding it. 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.[3] But the Queen's Counsel only emerged into eminence 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.[4] 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 their priority before the courts. The earliest English law list, published in 1775, lists 165 members of the Bar, of whom 14 were Queen's Counsel, a proportion of about 8.5%. Roughly the same proportion exists today, although the number of barristers has, of course, greatly increased, to about 12,250 in independent practice (i.e., excluding pupil barristers and employed barristers) as at December 2010.[5]
Queen's Counsel and serjeants were prohibited, at least from the mid-nineteenth century, from drafting pleadings alone; a junior barrister had to be retained. They were also not permitted to appear in Court without a junior barrister, and they had to have chambers in London.[4] From the beginning, they were not allowed to appear against the Crown without a special licence, but this was generally given as a formality. This was particularly important in criminal cases, which are mostly brought in the name of the Crown, with the result that, until 1920 in England and Wales, King's and Queen's Counsel had to have a licence to appear in criminal cases for the defence. These restrictive practices had a number of consequences: they made the taking of silk something of a professional risk, because appointment abolished at a stroke some of the staple work of the junior barrister; they made the use of leading Counsel more expensive, and therefore ensured that they were retained only in more important cases, and they protected the work of the junior bar, which could not be excluded by the retention of leading Counsel. By the end of the twentieth century, however, all of these rules had been abolished one by one, so that appointment is now a matter of status and prestige only, with no formal disadvantages.
Queen's Counsel were traditionally selected from barristers, rather than from lawyers in general, because they were counsel appointed to conduct court work on behalf of the Crown. Although the limitations on private instruction were gradually relaxed, QCs continued to be selected from barristers, who had the sole right of audience in the higher courts. However, in 1994 solicitors of England and Wales became entitled to gain rights of audience in the higher courts, and some 275 were so entitled in 1995. In 1995, these solicitors alone became entitled to apply for appointment as Queen's Counsel and the first two solicitors were appointed on 27 March 1997, out of 68 new QCs. 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 and ultimately Justice of the Supreme Court of the United Kingdom.[6]
The first woman appointed King's Counsel was Helen Alice Kinnear in Canada in 1934. The first women to be appointed as King's Counsel in the United Kingdom were Helena Normanton and Rose Heilbron in 1949.
The appointment of new Queen's Counsel was suspended in 2003, and it was widely expected that the system would be abolished. 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 (especially foreign commercial litigants) who did not have much else to go on,[7][8] and those who contended in a letter to The Times that it was a means whereby the most able barristers from ethnic minorities could overcome prejudice.[9] 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 and against retaining the title (see for example Sasha Wass QC),[10] it was announced that appointments of Queen's Counsel in England would be resumed but that future appointees would be chosen not by the government but by a nine-member panel, chaired by a lay person, which would include two barristers, two solicitors, one retired judge and three non-lawyers. Formally, the appointment remains a royal one made on the advice of the Secretary of State for Justice, but he no longer comments on individual applications, and merely supervises the process and reviews the panel's recommendations in general terms (satisfying himself that the process as operated is fair and efficient).
Application forms under the new system were released in July 2005 and the appointment of 175 new Queen's Counsel was announced on 20 July 2006. A total of 443 people had applied (including 68 women, 24 ethnic minority lawyers and 12 solicitors). Of the 175 appointed, 33 were women, 10 were from ethnic minorities, and 4 were solicitors. Six people were also appointed QC honoris causa.[11] On 16 October 2006, a couple of weeks after the beginning of the legal year, the successful candidates made a declaration and received their letters patent from the Lord Chancellor in Westminster Hall.
Further appointments were announced on 22 January 2008 and 23 February 2010, and the process is now again annual, with the last appointments to date announced on 1 March 2011. Further information can be found at the Queen's Counsel Appointments website, http://www.qcappointments.org/.
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 over 150 QCs in Scotland.[12] 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.
The title of QC remains, but in 1998 two Northern Irish barristers (Seamus Treacy - now Mr Justice 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".[13]
In 2000, the Northern Ireland High Court ruled in the barristers' favour, and after considerable wrangling the men were permitted to make "a more neutral statement".[14]
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".[15]
Nigeria replaced the QC nomenclature with the new title of Senior Advocate of Nigeria with appointments restricted to fewer than 30 lawyers a year, made by the Chief Justice of Nigeria on the recommendation of the Legal Practitioners Privileges Committee which is made up of senior judges and lawyers. The qualification requirements are almost identical to those required for appointment as Queen's Counsel. They are entitled to wear silk gowns and enjoy similar privileges as the Queen's Counsel.
| Queen's Counsel | |||||||||||
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| Traditional Chinese | 御用大律師 | ||||||||||
| Cantonese Jyutping | jyu6 yung6 daai6 leot9 si1 | ||||||||||
| Literal meaning | Barrister at His/Her Majesty's service | ||||||||||
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| Senior Counsel | |||||||||||
| Traditional Chinese | 資深大律師 | ||||||||||
| Literal meaning | Highly-experienced and qualified Barrister | ||||||||||
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In Hong Kong, the rank of Queen's Counsel was granted when it was a crown colony and British dependent territory. A practising barrister may be appointed as Queen's Counsel in recognition of his or her professional eminence by Crown Patent on the advice of the Chief Justice of the Supreme Court of Hong Kong.[16] As Hong Kong severed ties with the United Kingdom in 1997, barristers are no longer appointed Queen's Counsel (QC), but as Senior Counsel (SC). Those appointed before the change were renamed Senior Counsel.
Queen's Counsel are retained in several Commonwealth Realms where Queen Elizabeth II is head of state. In jurisdictions that have become republics, the office of Queen's Counsel has been replaced with an equivalent, for example, Senior Counsel in South Africa, Trinidad and Tobago and Guyana, Senior Advocate in Nigeria, India and Bangladesh, and President's Counsel in Sri Lanka.
The Commonwealth of Australia at the federal level and most state and territory governments commenced replacing the title Queen's Counsel and appointment by letters patent with the title Senior Counsel (SC) as an honorific conferred by the legal profession itself. New South Wales was the first and Queensland followed in 1993. Most other states and the Commonwealth Government followed over the next 15 years. Those appointed before the change in the relevant jurisdiction may retain the old title. The only state or territory to retain the Queen's Counsel is the Northern Territory.
In 2006, the title was renamed Senior Counsel, with the final appointments of Queen's Counsel occurring in 2007, after which the Lawyers and Conveyancers Act (which made the change) came into force. However in June 2009, Attorney-General Hon Christopher Finlayson announced that the title of Queen's Counsel would be reinstated,[24] and a bill to implement the restoration was introduced into Parliament in March 2010, with new conferences during 2010 and 2011 to the position.[25]
The practice of appointed Queen's Counsel continues in a number of Canada's provinces; appointments ceased in Ontario in 1985, 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. In Manitoba, it was proposed that the title would be replaced by Senior Counsel (S.R.) in 2001. Appointments were to be made by the Law Society of Manitoba.[26] However, the practice was never adopted.
In Alberta the Lieutenant Governor in Council appoints the Queen’s Counsel recipients. Traditionally, the appointments are made every second year. The honorary title recognizes outstanding expertise, work and contributions in a lawyer’s public life.[27]
In New Brunswick, the Lieutenant Governor appoints Queen's Counsel recipients on the advice of a committee comprising the Chief Justice of New Brunswick, the Attorney General, and the president of the Law Society of New Brunswick.
President's Counsel (postnominal PC) is a professional rank, as their status is conferred by the president, recognised by the courts and wear silk gowns of a special design. It is the equivalent of the rank of Queen's Counsel in the United Kingdom, which was use in Ceylon (Sri Lanka) until 1972 when Sri Lanka became a republic, when the position became that of Senior Attorney-at-Law. In 1984 the position became the President's Counsel. The holder can use the post-nominal letters PC after his or her name.
The following relates to the dress of Queen's Counsel at the Bar of England and Wales. Most other jurisdictions adopt the same dress, but there are some local variations.
Queen's Counsel in England and Wales have two forms of official dress, depending on whether they are dressing for appearance in Court before a Judge, or a ceremonial occasion.
A junior barrister, if male, wears a white shirt and white wing-collar with bands, underneath a double-breasted or three-piece lounge suit of dark colour. He has a black "stuff" gown over his suit, and wears a short wig of horsehair. A female junior barrister wears similar garb.
Upon promotion to Queen's Counsel, the male barrister retains in Court his wing collar, bands and short wig. However, instead of an ordinary dark jacket, he wears a special black court coat (frock coat) and waistcoat in a style unique to Queen's Counsel or, alternatively, a long-sleeved waistcoat in similar style with no frock coat, known as a "bum freezer" because it is cut off at the waist.
He also replaces the black stuff gown of a junior barrister with a black silk gown, although cheaper variants are also worn, including gowns of the same cut but all wool, or in a silk-wool mix, or in artificial silk. The all wool gown is, strictly speaking, a mourning gown, but that point is now of historical interest only. A female Queen's Counsel wears a similar gown and wig to that of her male counterparts.
For ceremonial occasions, Queen's Counsel wear black breeches and black stockings instead of trousers, and patent leather Court shoes with buckles. They wear the same black frock coat and waistcoat worn when appearing in Court (never the "bum freezer", however) but add lace at the wrists and also a lace stock at the collar. Bands are no longer worn at the collar in addition to the lace, and the wing collar is also dispensed with. They have white cotton gloves, but these are invariably carried and not worn. This part of their ceremonial dress is taken from the standard ceremonial dress worn at the Royal Court (as opposed to the Courts of Justice) by other courtiers.
In addition, however, Queen's Counsel wear distinctive full-bottomed wigs and their silk gowns. The silk gown is the same as that worn when appearing in court. It is this gown which gives rise to the colloquial reference to Queen's Counsel as silks and to the phrase taking silk referring to their appointment.
When wearing the full bottomed wig, Queen's Counsel have a black rosette hanging from the back of the neck, which was originally intended to catch oil and powder that might otherwise mark the silk gown. Modern wigs, however, are made of horsehair and so there is no longer any oil or powder.
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