Queen's Counsel

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Queen's Counsel
Traditional Chinese御用大律師
Cantonese Jyutpingjyu6 yung6 daai6 leot9 si1
Literal meaningBarrister at His/Her Majesty's service
Senior Counsel
Traditional Chinese資深大律師
Literal meaningHighly-experienced and qualified Barrister
 
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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 lawyers 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exists in various Commonwealth jurisdictions around the world, while in some other jurisdictions the name has been replaced by one without monarchical connotations, such as "Senior Counsel" or "Senior Advocate".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' experience or more.

Contents

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 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%. 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 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.[citation needed]

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. 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 Lord Chancellor, but he/she no longer comments on individual applications, and merely supervises the process and reviews the panel's recommendations in general terms (satisfying himself/herself 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 29 February 2012. Further information can be found at the Queen's Counsel Appointments website.[12]

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 over 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, 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 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".[14][dubious ]

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".[15][dubious ]

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 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.

Hong Kong

Queen's Counsel
Traditional Chinese御用大律師
Cantonese Jyutpingjyu6 yung6 daai6 leot9 si1
Literal meaningBarrister at His/Her Majesty's service
Senior Counsel
Traditional Chinese資深大律師
Literal meaningHighly-experienced and qualified Barrister

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.[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.

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 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.

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,[25] and a bill to implement the restoration was introduced into Parliament in March 2010, with new conferences during 2010 and 2011 to the position.[26]

Canada

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 Q.C. postnominal letters. 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.[27] 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.[28]

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 British Columbia the practice continues; Queen's Counsel recipients are appointed by the provincial Attorney General. 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).[29]

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 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.

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.

See also

References

  1. ^ Holdsworth, W.S. History of English Law. 1938 vi 473–4.
  2. ^ Patent Rolls, 2 Jac I p 12 m 10.
  3. ^ Baker, J. H. "The English Legal Profession 1450–1550", Lawyers in Early Modern Europe and America (Wilfred Prest (ed.)), 1981, 20.
  4. ^ a b Duman, Daniel. The English and Colonial Bars in the Nineteenth Century. 1983.
  5. ^ "Self-Employed Bar by Ethnicity and Gender". The Bar Council of the United Kingdom. 11 December 2009. http://www.barcouncil.org.uk/assets/documents/1%20Self%20Employed%20Bar%20excl%20Pupils%20by%20Ethnicity%20and%20Gender.pdf. Retrieved 19 March 2011.
  6. ^ "Appointment of Justice Lawrence Collins". Office of the Prime Minister of the United Kingdom. 2007-01-08. http://www.number10.gov.uk/output/Page10697.asp. Retrieved 2009-01-30.
  7. ^ "Building on Strength: The response of the Commercial Bar Association" (PDF). 2003-11-03. p. page 15ff in the PDF file. http://www.dca.gov.uk/consult/supremecourt/responses/sc033.pdf. Retrieved 2009-02-17.
  8. ^ Gavyn Arthur (2003-11-05). "Letter from the Lord Mayor of the City of London" (PDF). http://www.dca.gov.uk/consult/qcfuture/responses/qc014.pdf. Retrieved 2009-02-17.
  9. ^ Courtenay Griffiths; Linda Dobbs, Oba Nsugbe (2003-11-03). "Barristers from ethnic minorities". Letters to the Editor (The Times). http://www.timesonline.co.uk/tol/comment/letters/article1007444.ece. Retrieved 2009-02-17. "The hopes of a rising cohort of black and Asian practitioners would be dashed at a stroke by the abolition of silk, and a huge opportunity to promote diversity in the legal profession and on the bench would be missed."
  10. ^ "Constitutional reform: the future of Queen's Counsel." (PDF). The Lord Chancellor, Department for Constitutional Affairs. p. 9. http://www.dca.gov.uk/consult/qcfuture/responses/qc332.pdf. Retrieved 2009-01-30.
  11. ^ "Honorary QC nominations". Announcements 2007. Ministry of Justice. 2007-08-13. http://www.justice.gov.uk/news/announcement_130807a.htm. Retrieved 2009-01-29. "The six appointees in 2006 were…"
  12. ^ qcappointments.org
  13. ^ "Appointment of Queen's Counsel". Scotland.gov.uk. 2005-06-16. http://www.scotland.gov.uk/News/Releases/2005/06/16100924. Retrieved 2012-01-19.
  14. ^ Winter, Jane (2000-09-30). "Director's Report, August/September 2000". British Irish Rights Watch. http://www.birw.org/rep2000/augsept2000.html. Retrieved 2009-01-30.[dead link]
  15. ^ "Explanatory Notes to Justice (Northern Ireland) Act 2002". Office of Public Sector Information. 2002-10-16. http://www.opsi.gov.uk/Acts/acts2002/en/ukpgaen_20020026_en_1. Retrieved 2009-01-30.
  16. ^ "Additional Submission to the Criminal Justice Review". Committee on the Administration of Justice. February 2000. http://www.caj.org.uk/keydocs/AddRevCJR.html. Retrieved 2009-01-30.[dead link]
  17. ^ About the Bar Association Hong Kong Bar Association.
  18. ^ "Appointment of Silk in New South Wales". Senior Counsel Protocol. Bar Association of New South Wales. 1993. http://www.nswbar.asn.au/docs/professional/silks/Silk_practical.pdf. Retrieved 19 March 2011.
  19. ^ QCs and SCs The Bar Association of Queensland.
  20. ^ "Moratorium on appointment of Queen's Counsel – Practice Direction 2/94 (Further amended 1995)" (PDF). Supreme Court of the Australian Capital Territory. 12 September 1995. http://www.courts.act.gov.au/supreme/content/PracticeDirectionsNotesToPractitioners/Practice%20Direction%202%20of%2094.pdf. Retrieved 3 October 2008.
  21. ^ "Government calls its news silks senior counsel, not Queen's counsel". The Australian. News Limited. 9 July 2010. http://www.theaustralian.com.au/business/legal-affairs/government-calls-its-news-silks-senior-counsel-not-queens-counsel/story-e6frg97x-1225889557607. Retrieved 7 February 2011.
  22. ^ Austin, Paul (17 December 2009). "Victorian courts banish 'outdated' Queen". The Age (Fairfax Media). http://www.theage.com.au/national/victorian-courts-banish-outdated-queen-20091216-kxhk.html. Retrieved 18 December 2009.
  23. ^ "Media Release - Appointment of Senior Counsel" (PDF). Supreme Court of Victoria. 12 September 2007. Archived from the original on 22 July 2008. http://web.archive.org/web/20080722111805/http://www.supremecourt.vic.gov.au/wps/wcm/connect/Supreme+Court/resources/file/ebfcb5464bb700c/MediaRelease_Appointment_process_Senior_Council07.pdf. Retrieved 2 October 2008.
  24. ^ "24 September 2001 Senior Counsel to replace Queen's Counsel in WA". http://www.supremecourt.wa.gov.au/ Supreme Court of Western Australia. 24 November 2001. http://www.supremecourt.wa.gov.au/content/news/media/2001/media22.aspx. Retrieved 2 October 2008.
  25. ^ "Government to restore Queen’s Counsel". New Zealand Government. 2009-05-25. http://www.beehive.govt.nz/release/government+restore+queen%e2%80%99s+counsel. Retrieved 2009-06-17.
  26. ^ "Lawyers and Conveyancers Amendment Bill", "Make a Submission", www.parliament.nz
  27. ^ "Legislative Electronic Publications – Queen's Counsel Appointments Replaced To Reflect Modern Times: Mackintosh". Gov.mb.ca. 2001-01-09. http://www.gov.mb.ca/chc/press/top/2001/01/2001-01-09-01.html. Retrieved 2012-01-19.
  28. ^ "Government of Alberta". Alberta.ca. 2009-12-31. http://alberta.ca/home/NewsFrame.cfm?ReleaseID=/acn/200912/27583E5A0B7E3-A4C5-07A9-4E2B971B867EB037.html. Retrieved 2012-01-19.
  29. ^ http://www.newsroom.gov.bc.ca/2011/12/twenty-eight-receive-queens-counsel-honour.html

External links