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Queen's Counsel
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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".
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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, in Scotland, as an advocate) for at least ten years. More recently, solicitors have also been appointed.
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 (W. S. Holdsworth, History of English Law (1938) vi 473-4; Patent Rolls, 2 Jac I p 12 m 15).
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 (JH Baker, "The English Legal Profession 1450-1550" in Wilfred Prest (ed), Lawyers in Early Modern Europe and America (1981), 20). 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 (Daniel Duman, The English and Colonial Bars in the Nineteenth Century (1983) 35.) 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 (Duman 98-99). 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 women to be appointed as King's Counsel 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 are women, 10 are from ethnic minorities and 4 are 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 about one hundred QCs in practice in Scotland, about one-fifth of the practising Bar. 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 senior judges and lawyers. The qualification requirements are almost identical to those required for appointment as Queen's Counsel. They 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 prior to the handover of Hong Kong to China in 1997. In line with the removal of references to the Queen of the United Kingdom from other titles and organisational names in Hong Kong, the rank has been replaced by Senior Counsel (postnominal SC).
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, Belize, Trinidad and Tobago and Guyana, Senior Advocate in 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. Singapore has gone on to introduce a Senior Counsel appointment system in an effort to mirror that of Queen's Counsel appointments to recognise advocates of distinction.
Canada
The practice of appointed Queen's Counsel has also fallen into disuse in part of Canada where the two largest provinces, Ontario and Quebec, ceased making appointments in 1985 and 1976 respectively 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. Appointment of Queen's Counsel continues in other Canadian provinces, including British Columbia (pursuant to the Queen's Counsel Act, R.S.B.C. 1996, c. 393).
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
External links
- 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.
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