Queen's Counsel

A 1903 caricature of Robert McCall KC (formerly QC) wearing his court robes at the Bar of England and Wales. For court, he wears a short wig, and bands instead of lace at the collar, but he retains the silk gown and court tailcoat worn on ceremonial occasions.

Queen's Counsel (postnominal QC), known as King's Counsel (postnominal KC) during the reign of a male sovereign, are jurists appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law. Membership exists in various Commonwealth jurisdictions around the world, while in some other jurisdictions the name has been replaced by one without monarchical connotations, such as "Senior Counsel" or "Senior Advocate". Queen's Counsel is a status, conferred by the Crown, that is recognised by 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, and hence QCs are often colloquially called silks. 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 barristers, or (in Scotland) advocates, or solicitor advocates with 15 years of experience or more.

History

England and Wales

Historical background

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 emerged into eminence only in the early 1830s, prior to when they were relatively few in number. It became the standard means to recognise a barrister as 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 the prestige of the serjeants and 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%. As of 2010 roughly the same proportion existed, though the number of barristers had increased to about 12,250 in independent practice (i.e., excluding pupil barristers and employed barristers).^[5]

Restrictions on Queen's Counsel

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 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 stipulation was particularly important in criminal cases, which are mostly brought in the name of the Crown. The result was 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 restrictions had a number of consequences: they made the taking of "silk" something of a professional risk, because the 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. Appointment as QC is now a matter of status and prestige only, with no formal disadvantages.

Modern reforms

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.

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.

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 based in Washington, D.C., and Dr Lawrence Collins (55), a partner of the City law firm of Herbert Smith. The latter QC was subsequently appointed as a High Court Judge and ultimately Justice of the Supreme Court of the United Kingdom.^[6]

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. Supporters included those who considered it as an independent indication of excellence of value to those (especially foreign commercial litigants) who did not have much else to go on,^[7][8] and those who contended that it was a means whereby the most able barristers from ethnic minorities could advance and overcome prejudice, as well as better represent members of an increasingly diverse society.^[9]

The Government's focus 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. This was held to be inappropriate and unfair given the size of the modern profession, as well as 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] the government 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, to 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 Lord Chancellor, but he/she no longer comments on individual applications. The Lord Chancellor supervises the process and reviews the panel's recommendations in general terms (to be satisfied 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 ethnic minorities, and four 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. The process takes place annually, with the last appointments to date announced on Wednesday 19 February 2014. Further information can be found at the Queen's Counsel Appointments website.^[12]

Scotland

The independent Bar is organised as the Faculty of Advocates and its members are 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.

In 2005 there were more than 150 QCs in Scotland.^[13] 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, rules were changed so that solicitors with rights of audience in the Court of Session or High Court of Justiciary were permitted 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 continues to be used. In 1998 two Northern Ireland barristers (Seamus Treacy, now Mr Justice Treacy, and Barry Macdonald) opposed the requirement of swearing an oath of allegiance to the Crown. 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 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".^[14]

In 2000, the Northern Ireland High Court ruled in the barristers' favour. After more wrangling, the barristers were permitted to make "a more neutral statement" of commitment to principles.^[15]

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".^[16]

Nigeria

Nigeria replaced the QC nomenclature with the new title of Senior Advocate of Nigeria (SAN). Appointments are 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. The SANs are entitled to wear silk gowns and enjoy similar privileges as the Queen's Counsel.

Hong Kong

In Hong Kong, the rank of Queen's Counsel was granted when it was a crown colony and British dependent territory. A practising barrister could 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.^[17] 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.^[18]

Sri Lanka

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 used 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.

Today

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.

Australia

The Commonwealth of Australia at the federal level, and most state and territory governments, began in 1994 to replace the title Queen's Counsel and appointment by letters patent with the title Senior Counsel (SC) as an honorific conferred by the legal profession. New South Wales was the first in 1993 and Queensland followed in 1994.^[19] Most other states and the Commonwealth Government followed over the next 15 years. Those appointed Queen's Counsel (QC) before the change in the relevant jurisdiction may retain the old title.

In 2013 Queensland restored the rank of Queen's Counsel.^[20] Those appointed Senior Counsel before the reintroduction of Queen's Counsel were given the option of retaining their old title or seeking appointment as Queen's Counsel, while all new appointments would be as Queen's Counsel only. Of the 74 Senior Counsel appointed in Queensland before the reintroduction of Queen's Counsel in June 2013, only four have opted to retain their old title of Senior Counsel.^[21]

Following the move by Queensland, there was speculation that other Australian states might follow suit.^[21] On 3 February 2014, the Victorian Attorney-General announced that the rank of Queen's Counsel would shortly be restored in Victoria.^[22] Unlike the approach in Queensland (where all future silks would be appointed as Queen's Counsel by letters patent), in Victoria all new appointments continue to be as Senior Counsel, with Senior Counsel then given the option to seek appointment as Queen's Counsel by letters patent.^[22] In March 2014, Commonwealth Attorney-General George Brandis QC announced the restoration of the rank of Queen's Counsel at the federal level, raising further speculation that more Australian states would move to restore the rank.^[23]

• The NSW Government replaced the office of Queen's Counsel with the office of Senior Counsel in 1993. All existing appointees could choose to continue to be called Queen's Counsel or change to the newer title of Senior Counsel. All new appointees were called Senior Counsel.^[24] As of March 2014 the New South Wales Bar Association has established a committee to consider the reintroduction of Queen's Counsel in New South Wales.^[23]
• The Government of Queensland replaced the office of Queen's Counsel with the office of Senior Counsel in 1994. This move was reversed in 2013.
• The Supreme Court of the Australian Capital Territory effected a moratorium on appointment of Queen's Counsel in its own jurisdiction in 1995 in preference to appointing Senior Counsel.^[25][26]
• The Supreme Court of Victoria replaced the appointment of Queen's Counsel with Senior Counsel in 2000.^[27][28] The rank of Queen's Counsel was restored in 2014.^[22]
• The Supreme Court of Western Australia replaced the appointment of Queen's Counsel with Senior Counsel in 2001.^[29]
• Tasmania ceased appointment of Queen's Counsel in 2005.^[30]
• In the Northern Territory the rank of Queen's Counsel was never formally abolished but in 2007 the rules of the Territory's Supreme Court were amended to facilitate the appointment of Senior Counsel by the Chief Justice.^[30]
• The Government of South Australia replaced the appointment of Queen's Counsel with Senior Counsel in 2008.^[31]
• The Commonwealth appointed its last QCs in March 2007 under the Howard Government. No appointments were made during the Rudd Government, but on 8 July 2010, Gillard Government Attorney-General Robert McClelland appointed the first Commonwealth "Senior Counsel".^[30] In March 2014 Attorney-General George Brandis QC announced the reintroduction of Queen's Counsel at the Commonwealth level.

Barbados

The honour of QC is by appointment. The selection process is secret. ^[32]

New Zealand

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,^[33] and a bill to implement the restoration was introduced into Parliament in March 2010, with new conferences during 2010 and 2011 to the position.^[34] The bill passed committee stage in November 2012, was passed in a third reading and received the Royal Assent on 19 November 2012.^[35]

Canada

The practice of appointed Queen's Counsel continues in a number of Canada's provinces based on merit, usually after decades of community service and advocacy, as a way of recognising members who have helped community members, charities, environmental groups and others in need of legal aid. The title is abbreviated "Q.C." in English, c.r. in French ("conseillier de la reine").

Appointments ceased in Quebec in 1975 and Ontario in 1985,^[36] though title holders from Ontario continue to use the Q.C. or c.r. postnominal letters.^[37] No substitute distinctions have been implemented in these jurisdictions. The federal government ceased the practice in 1993, resuming it in 2013.^[38] In Manitoba, it was proposed that the title would be replaced by Senior Counsel (S.C.) in 2001. Appointments were to be made by the Law Society of Manitoba.^[39] However, the practice was never adopted.

In Nova Scotia, an independent advisory committee makes Queen's Counsel recommendations to the provincial cabinet. Criteria include a minimum of 15 years as a member of the bar of Nova Scotia, demonstrated professional integrity, good character and outstanding contributions to the practice of law. Eligible candidates can make application, or they can be nominated by others. Applications generally open in September of each year, with appointments made annually by the province's Minister of Justice and Attorney General.^[40] A similar practise applies in Prince Edward Island.

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.

In Alberta the Lieutenant Governor in Council appoints the Queen's Counsel recipients. Traditionally, the appointments are made every second year. The honorary title recognises outstanding expertise, work and contributions in a lawyer's public life.^[41]

In British Columbia the practice continues; Queen's Counsel recipients are appointed by the Attorney General of British Columbia. Candidates are recommended by an advisory panel composed of the Chief Justice of British Columbia, the Chief Justice of the Supreme Court of British Columbia, the Chief Judge of the Provincial Court, the president of the Law Society of British Columbia, a Law Society member appointed by the benchers (directors) and the deputy attorney general. The committee also seeks the views of the Canadian Bar Association (B.C. branch).^[42] Attorneys General, who are qualified lawyers, are automatically appointed as QC upon swearing into office under the Queen's Counsel Act.

Queen's Counsel dress

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.

Court dress

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 winged 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.

Ceremonial dress

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 winged 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.

Queen's Counsel (honoris causa)

An award of Queen's Counsel honoris causa (Honorary QC) may be made to lawyers who have made a major contribution to the law of England and Wales but who operate outside court practice.^[43][44]

Courtesy QC for members of Parliament

Until the 1990s there was a practice that sitting Members of Parliament (MPs) who were barristers were appointed QC, sometimes known as a "Courtesy" or even "false" Silk, on reaching a certain level of seniority, of around 15 years Call, at the Bar (though not automatically on election when they were more junior). In the 1990s it was felt that the practice of granting Silk to MPs in this way, without considering their abilities, devalued the rank and the practice was abolished.^[44]

See also

• Senior Counsel, similar status used by most Australian jurisdictions and by some jurisdictions in which the British monarch is not head of state.
• Serjeant-at-law, a now defunct rank of senior barrister.
• Silk (TV Series), a BBC 2011 legal drama showing the competitive pursuit of the silk.
• Queen's Counsel Selection Panel, The Queen's Counsel Selection Panel for England and Wales.

References

External links

Wikimedia Commons has media related to Queen's Counsel.

• The Queen’s Counsel of England and Wales 2010
• Paper on Queen's Counsel constitutional reforms
• Queen's Counsel – Historical Context a paper written in 2001 for the Nova Scotia Barristers' 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
• Canadian Forces Administrative Order 18-4 Recommendations for Canadian Orders, Decorations and Military Honours

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