Queen's Counsel (
postnominal QC), known
as
King's Counsel (
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 countries
around the world and it 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".
In order
to qualify, a lawyer usually has to serve as a barrister or solicitor
(or, in Scotland
, as an
advocate) for at least ten
years.
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.
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. 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. 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. 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 11,818 in independent practice (i.e. excluding
pupil barristers and employed barristers) as at December
2005.
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
. 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.
Modern reforms
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 instruction were gradually relaxed, they
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 were entitled to gain rights of audience in the
higher courts. Some 275 were so entitled 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 and more
recently a
Lord Justice of
Appeal.
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
Helen Normanton and
Rose Heilbron in 1949.
The appointment of 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 (especially foreign commercial litigants) who
did not have much else to go on, 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 and against
retaining the title (see for example Sasha Wass QC), 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 would include two barristers, two
solicitors, one retired judge and three non-lawyers.
Formally, however, the appointment remains a royal one made on the
recommendation of the Secretary of State for Justice, but he 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 (satisfying himself that the
process as operated was fair and efficient).
Application forms for appointment under the new system were
released in July 2005. The appointment of 175 new Queen's Counsel
was announced on 20 July 2006. 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. The Silk Ceremony was on 16 October 2006 in Westminster
Hall, a couple of weeks after the beginning of the legal year. The
successful candidates were to make a declaration and receive their
letters patent from the Lord Chancellor.
Further appointments were announced on 22 January 2008 and will be
made from time to time, depending on how much time the panel needs
to make its recommendations. Unlike the previous practice, there is
no guarantee of appointments being made annually.
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. 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 - 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".
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".
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".
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
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.
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 Commonwealth countries that have become
republics, the office of Queen's Counsel has generally been
retained, though with a new style -- for example, becoming 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
In
Australia, most State governments have
replaced the awarding of this title with '
Senior Counsel'.
In the other Australian states, those appointed before the change
may retain the old title (many of whom do, as the title is highly
regarded).
Only the Commonwealth of Australia at the
Federal level, and the Northern Territory
continue to appoint Queen's Counsel.
New Zealand
In 2006,
the title was renamed Senior Counsel
in New
Zealand
, 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. In June 2009,
Attorney-General Hon
Christopher
Finlayson announced that the title of Queen's Counsel will be
reinstated.
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 QC postnominals. In Manitoba, the title was been replaced by
Senior Counsel (S.R.) in 2001. Appointments to this title are now
being made by the
Law Society of
Manitoba.
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, apron when the position became
the Senior Attorneys-at-Law
but 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 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.
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
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.
See also
- Senior Counsel, similar status
used by some jurisdictions in which the British monarch is not head
of state.
- Serjeant-at-law, a now defunct
rank higher than that of QC.
References
External links
replaced the office of Queen's Counsel with the
office of Senior Counsel on 24 September 2001
will only appoint Senior Counsel, as of 12
September 2007.
effected a moratorium on appointment of Queen's
Counsel in its own jurisdiction in 1995 in preference to appointing
Senior Counsel.
Barristers' Society reviewing the history of the QC
and current practices throughout Canada and the
Commonwealth.
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