The big question: Should we abolish Queen’s counsel?

Adapted from The Independent, by Robert Verkaik, Legal Affair Correspondent, Thursday, 27 July 2006

Why is this issue important now?

The QC System was suspended three years ago by the then Lord Chancellor, Lord Irvine of Lairg, after
concerns were raised about its fairness. Last week the first new QCs since then were appointed under a
resumed and reformed process. Only four out of the new 175 appointments were solicitors; the rest were
barristers. This has prompted Fiona Woolf, the new president of the Law Society, which represents 100,000
solicitors in England and Wales, to question the value of the rank of silk. In an interview with the Law
Society Gazette she said: "I’m not sure that I would perpetuate a QC System. I would go down the route of
specialist accreditation - for example, having specialist family or energy lawyers, etc… Her comments will
rekindle the debate about the purpose and value of the QC System.

What do QCs do?

Queen's Counsel are senior lawyers - barristers or solicitors - who are recognized experts in a particular
field of law. Many of them are also experienced and accomplished advocates, although this is not a
prerequisite for selection. QCs will lead their legal team in and out of court and may also be appointed to
head government inquiries or take on other quasi-judicial roles that require the skills of an impartial arbiter.
Big and complex cases often require a QC (or "silk") who is then supported by at least one junior barrister.

How long have they been around?

The rank of Queen's Counsel dates back over 400 years. The very first person to attain the rank was
Francis Bacon, appointed by Elizabeth I in 1594 as a political manoeuvre to prevent him acting against the
Crown. The appointment of Queen's Counsel was not made or applied for by anyone under the reigns of
William and Mary, nor Anne.

In the 18th century, the total number of Queen's Counsel was not more than 20. And by the end of the 17th
century there were signs that this new order of counsel was ceasing to be in any real sense the Queen's
Counsel, as they had begun to take on a more independent role.

Successful candidates are still entitled to wear a silk gown, hence the expression "taking silk", and are
allowed to sit in the front row in court. Becoming a QC has also been long regarded as a stepping stone to
becoming a judge. Until recently all QCs had to be barristers. In 1995 the rules changed to allow solicitors
to take silk.

How are QCs appointed?

Under a reformed System brought in last year, senior barristers and solicitors are invited to apply for the
rank of QC through an open competition. The previous selection process was criticized for being too
secretive, prone to the allegation that it was simply a means of perpetuating an Old Boys' Network of very
well-paid barristers. The changes, supported by the Bar, the Government and the Law Society, mean that
the Lord Chancellor no longer makes the appointment.

Instead selection is carried out by an independent Selection Panel, whose membership includes lay
assessors unconnected with the legal profession. The panel makes its decisions based on a range of
referees nominated by the applicant who can include other advocates who have seen them perform in
court.

What public benefit do they provide?

The Office of Fair Trading investigated the legal professions in 2001. It concluded that the rank of QC
offered the consumer "questionable value" because it permitted barristers to double their earnings over-
night. Some barristers are known to even tell their clerks to treble their earnings as soon as the "silk" letter
drops through their letter box. The OFT also raised concerns that the kitemark restricted competition in the
legal market place. It is also suggested that a judge will listen to a QCs arguments with greater respect.
The Bar, in turn, dismissed the report as "glib and ignorant". At the time, the then chairman of the Bar, Roy
Amlot QC, said: "We would have to question its conclusions in almost every respect. People are more than
just consumers; they are citizens who require the protection of a strong framework for justice, including an
independent legal profession. "

What about women and ethnic minority lawyers?

One of the arguments for abolishing QCs was that women and ethnic minorities were missing out on a key
promotion in their chosen profession. However, leading black and Asian barristers have been reluctant to
join a campaign to abolish the rank as they argue that this would deprive many up-and-coming ethnic
minority lawyers from an accolade that they were on the brink of achieving. Last week's round of
appointments showed that while women were more successful than in other years, ethnic minority lawyers
had made little progress. Last week only 10 QC appointments were from an ethnic minority background.

What should replace QCs?

An alternative, favoured by the new Law Society president is an accreditation scheme, which sim- ply
recognizes experts in a particular field of law. This would do away with the need for a kitemark that
rewarded both advocacy and legal knowledge. Instead, independent panels would be able to recommend
candidates as approved lawyers capable of working in specific areas of law. A more radical approach might
be to fuse the legal professions so that there is one body of lawyers, of whom some are specialist
advocates, some are litigators and some are legal advisers.
Would the public benefit from getting rid of QCs? Yes...
* Legal fees would
plummet, as QCs would no longer be able to charge double for their services.
* Instead of having two barristers in court - a QC and his or her junior - a case could proceed with just one
advocate. * An
alternative System for selecting 'specialist lawyers ‘ would open up the kitemark to more women and ethnic
minority solicitors.
No... * The
standard of advocacy in court would fall, leading to more appeals and mistrials.
* The quality of the judiciary would be affected as appointments to the Bench could no longer be drawn
from the ranks of QCs.
* Without a recognized standard of excellence, barristers would be more interested in media headlines than
serving their clients.

Queen’s Counsel have been appointed for the last 400 years.

Sir Francis Bacon was the first lawyer to become counsel to the Sovereign. He was appointed in 1596
during the reign of Queen Elizabeth I.
By the last part of the 16th century it had become apparent that the Queen's Attorney and the Queen's
Solicitor (the forerunners of the Law Officers of the Crown) were unable to perform ail the duties that their
offices imposed on them, by themselves. As a result, the counsel who became known as Queen's Counsel
were appointed to give assistance and ad- vice to the Law Officers of the Crown. They were often
consulted in capital cases and in cases of state. At that time Queen's Counsel were expected to become
advocates on behalf of the Sovereign. During the reign of a king they were of course called King's Counsel.
By the beginning of the 17th century King's Counsel were appointed directly by the Crown and the rank
became an established order in the legal profession. During the 18th century King's Counsel came to be
regarded as a class of counsel who had been given a rank superior to that of ordinary counsel. By this time
appointees had ceased to perform the functions for which the office had originally been created.
Appointment has, since the reign of King William IV, been seen as a mark of recognition for the leading
counsel of the day.