The Role Of Queen’s Counsel In English Legal System. Controversies, Ideas, Reforms

Introduction – Who Is Queen’s Counsel?

The legal profession in England and Wales is divided traditionally into two separate branches: barristers and solicitors. Barristers are professional legal advisers and courtroom advocates who argue a case before a judge or tribunal in the courtroom. The role of solicitors is much wider, as they provide legal services in variety of areas of law, but traditionally they have not appeared in the higher courts. In contrast with barristers, solicitors are often compared to general practitioners. Queen’s Counsel is in fact a special which is awarded for distinguished branch of advocates in England and Wales. Traditionally, this was restricted to barristers but in 1996 the system was changed and solicitors became entitled to be appointed Queen’s Counsels.

In recognition of excellence and experience the Queen annually appoints the lawyers to be one of “Her [or His] Majesty’s Counsel learned in the law”. It is worth remarking that when the Sovereign is the King then an order of the Privy Council translates all Queen’s Counsel into King’s Counsel. QC status is connected with formal privileges and fees charged, which would be discussed later.

History And Position Of Queen’s Counsel Within The English Legal System.

The history of Queen’s Counsel started in 1597 when Sir Francis Bacon was given a patent giving him precedence at the Bar. He was appointed first Queen’s Counsel “Extraordinary” in contrary to King’s Counsels in Ordinary such as Attorney-General, Solicitor-General and King’s Serjeants. The status of QC was at that connected with certain disadvantages such as the prohibition to appear in the court against the Crown without special licence. Moreover, they were prohibited from drafting pleadings alone without the assistance of a junior counsel. They were also not permitted to appear in Court without a junior barrister and they had to have chambers in London. On the other hand, the appointment meant that the lawyer could instantly and greatly increase his fees. As J. H. Baker points out:

…the holders benefitted financially from the valuable right to be heard in the courts before junior barristers and it is known that Francis Winnington enjoyed a tenfold increase in his professional income after becoming king’s counsel in 1672.

However, by the end of the twentieth century, the majority of the rules which constrained but also favored QCs, had been abolished so that the appointment is now a matter of status and prestige only.

As was mentioned before, QC status is connected with formal privileges and fees charged. Three formal privileges could be distinguished. Firstly QC wears a distinctive uniform. Court working dress differs among QCs, junior barristers and solicitor-advocates. QCs wear a short wig, wing collar and bands and silk gown over a special court coat; junior barristers wear a short wig and stuff gown with bands; solicitors and other advocates authorised under the Courts and Legal Services Act 1990 wear a black stuff gown, wing collar and bands, but no wig. It is worth to add that Queen’s Counsel gown gives rise to the colloquial reference to them as “silks” and to the phrase “taking silk” referring to their appointment.

Secondly, the judiciary have traditionally given QCs a formal right to address the court with preference to any other advocates. However, it is really doubtful whether this right has practical significance any longer. The third privilege is connected with sitting in a particular part of the court. Silks are entitled to sit in the front row. This is also the a matter of professional ethiquette rather than a serious advantage.

The appointment results in fees charged by QC. Due to the fact that Silks have to focus on fewer, more complex cases, it usually leads to an increased fee rate per case. It derives from the fact that QCs tend to specialize in different types of work. Cases which are legally or factually complex may need the special expertise. Sometimes Silks are chosen to lead a team of advocates, which could be caused by the large amount of material to be managed.

The last but not least consequence of appointment is the exemption of the Silks in the Code of Conduct for the Bar of England and Wales from the so called “cab-rank rule”. This rule is described as:

A self-employed barrister must comply with the ‘Cab-rank rule’ and accordingly except only as otherwise provided in paragraphs 603 604 605 and 606 he must in any field in which he professes to practise in relation to work appropriate to his experience and seniority and irrespective of whether his client is paying privately or is publicly funded:

(a) accept any brief to appear before a Court in which he professes to practise;

(b) accept any instructions;

(c) act for any person on whose behalf he is instructed;

and do so irrespective of (i) the party on whose behalf he is instructed (ii) the nature of the case and (iii) any belief or opinion which he may have formed as to the character reputation cause conduct guilt or innocence of that person.

This rule stipulates that barristers (contrary to solicitors) cannot pick and choose their clients. In other words, personal preference cannot decide which case a barrister takes. A barrister could not, as well, decide that he will refuse to take briefs from companies that trade with a particular country because his personal ethics infringes the rule. As the Lord Irvine QC pointed out:

[the cab-rank rule is] the duty to appear for the Yorkshire Ripper or any other defendant against whom there may be a hostile climate of public opinion. In civil cases, it is also his duty to appear not only for a particular interest group with which he might prefer to identify but for every interest group…

Although “the cab-rank rule” raises many doubts among non-professionals and professionals, in general it is supported by the members of the Bar, as David Pannick QC states:

Any lawyer who does not understand [the purpose of the rule] really has no business being an advocate.

The Code of Conduct of the Bar of England & Wales specifies for QCs that they are not obliged to accept instructions to settle documents of the kind normally settled by (a) junior counsel. It comes from the expectation that they will deal with particularly complex cases, or lead a team.

The number of self-employed Queen’s Counsels in December 2008 was 1273. Taking into account that there were 12136 self-employed barristers, it shows that around 10% of members of the Bar have been distinguished as QCs. It should not been forgotten that since 1996 solicitors are also entitled to apply for a QC but the amount of former solicitors among Silks is low. The number of women in the Bar in December 2008 was 3772, which constituted around 30 per cent. However, when comparing with the number of female QCs it could be seen that it is much lower – 127, which is around 10 per cent. In case of ethnic minorities, the number of barristers from an ethnic minority group was 2573, which is around 20 per cent. Again when comparing this information to the number of QCs from an ethnic minority group, the difference is significant – only 107 Silks have ethnic minority background, that is around 10 per cent. These statistics shows that the profession of barrister is still a domain of white, British males, which was widely criticized not only by the society but also by other lawyers. On the other hand, it should not be forgotten that in recent years the legal professions have succeeded in opening their doors to a wider range of people, so that they are more representative of the society in which they work.

Does Britain Really Need Aristocrats Among Lawyers?

The Silk system was criticized on many occasions for, inter alia, being too secretive, prone to the allegation that it was simply a means of perpetuating an Old Boys’ Network of very well-paid barristers. In fact, it was Lord Chancellor whose role was the most significant in the process of appointment. He had the power to recommend candidates for appointments to the monarch, reinforced by custom and practice. It should not be forgotten that the Lord Chancellor is appointed by the Sovereign on the advice of the Prime Minister, which makes this office undoubtedly political. Therefore the QC appointment process was questioned. As Diana Woodhouse points out:

[The Lord Chancellor’s] operation as a executive arm of government means that such appointments are in danger of being tainted by accusations of political influence.

The landmark in the debate was the publishing of a Report on competition in legal professions issued by the Director General of Fair Trading in 2001. The report raised a number of issues, especially restrictions of competition, as well as, their justifications and suggested the ways of liberalizing it in professional services. The review, which was carried out under section 2 of the Fair Trading Act 1973, is based on the lengthy report of a firm of consultants known as LECG. The Office of Fair Trading (OFT) addressed what the OFT believes may be unjustified and anti-competitive restrictions on the practice of law. With regard to barristers, there were four main targets of criticism. The fourth concerned the QC system both as an institution, and with reference to the present system of selection. The report questioned the Silk system’s value to consumers, how the way it operates as a quality mark and the extent to which the rank acts to distort competition. The emphasis was put on the following issues: whether clients need a quality mark when direct access to barristers is restricted, is it appropriate for the Crown to give a title to selected practitioners, which enhanced their earning power and competitive position relative to others. The other concerns were raised as to the selection process. The Director General of Fair Trading argued that there is inadequate peer review on selection and that there are no professional examinations that must be taken in order to become a QC. Moreover, the transparency, objectiveness and non-discrimination of the process were questioned. And last but not least, the Director General of Fair Trading asked the client’s need for a quality mark where restrictions upon direct access by clients to barristers remain in place and barristers’ services are consequently purchased by solicitors who are specialists.

Reform Or Abolition?

After the publication of the Report by the Office of Fair Trading the government issued a consultation paper entitled In the Public Interest?, which asked for comments on the perceived benefits and potential drawbacks of the current system. The responses, mostly obtained from the lawyers, were published on 14 May 2003. Although there was no clear majority in favour of any particular way forward, there was a strong body of opinion which supported some form of significant change. In particular, many respondents doubted whether state involvement was appropriate.

Many respondents, for example firms of solicitors or The Law Society, did not find the QC mark to be of use. They saw the market in legal advocacy as highly developed and were not convinced that solicitors needed a broad and undifferentiated quality mark to help them decide whom to instruct. Moreover, they argued that the rank of QC is not a reliable guarantee of quality or expertise (particularly as the current system does not include a stage for review and possible removal, or indicate the area of any specialism). In addition, in their opinion, the rank restricts competition and does not allow market forces to determine freely the allocation of resources. The Law Society put in question the whole idea of designation of QCs, which they considered as a public honour accorded to a private group. They repeated the view expressed in The Law Society’s submission from 1999:

There is no logical reason why such an honour or its equivalent might not be given to outstanding doctors, dentists or accountants. The designation is a mark of patronage that is inappropriate in the modern age

The respondents to the consultation paper in favour of QC system (mainly barristers, QCs and judges) made several points. Firstly, they stated that the system provides a body of advocates who are identified as leaders of their profession and so gives a clear mark of distinction as an advocate. Secondly, that mark is internationally recognised, and as such is both an example to other systems, and a very substantial source of foreign earnings, particularly by attracting commercial litigation to the UK. Thirdly, it enhances competition in the interests of the consumer, by enabling solicitors to shop around among a number of barristers who have been recognised by the award of Silk. Fourthly, it assists solicitors in selecting the quality of legal assistance their client needs, particularly in areas with which the solicitors may be less familiar. As it could be easily seen, most of the arguments from both sides were stating exactly the opposite in the same matters.

Due to the controversial appointment procedure and to results of the open consultation, the Lord Chancellor, Lord Falconer of Thoroton decided to suspend the appointment of Queen’s Counsel in 2003. He made the following statement:

While the consultation did not produce a consensus as to whether the title of Queen’s Counsel should continue to exist, it is clear to me that as Lord Chancellor and Secretary of State I should no longer play a part in assessing and selecting candidates to be appointed as QCs. None of the consultees could demonstrate that such involvement in the selection process is fundamental to the Silk mark’s value; nor does it add value for consumers of legal services. I will, therefore, not continue that role.

It was widely expected that the system would be abolished, although existing QCs were not affected by the suspension. Then the campaign was set up to retain the Silk system. Apart from the Bar Council and Judiciary, those who supported the retention (for example foreign commercial litigants) were trying to convince the government that the QC system adds value and diversity to the English Legal System, and that it performs a significant role in the international provision of UK legal services. The others contended in a letter to The Times in London that QC system was a means whereby the most able barristers from ethnic minorities could overcome prejudice. David Pannick QC, who firstly was in favour of abolition, pointed out:

An independent profession cannot justify a system by which conferral of a distinction is dependent on the advice of civil servants and the judgment of a politician, however conscientious. By analogy with some Commonwealth jurisdictions, appointment should be made by the Queen on the recommendation of the Lord Chief Justice, on the basis of advice from eminent lawyers and distinguished non-lawyers, applying a fair and open selection process.

He also argued that silk route is encouraging advocates to be awarded, which helps to promote high standards of advocacy and assist to maintain the rule of law. Moreover, the rank of QC is internationally recognized, which produces very substantial earnings by attracting foreign capital. The campaign resulted in switching the government’s focus from the abolition to reform of the system.

The Government announced in November 2004 that the QC system would be resumed but (może: , however, – bo but się powtarza później jeszcze ) that (that niepotrzebne?) future appointees would not be chosen by the Lord Chancellor but by a special panel, chaired by a lay person and consisting of at least 9 members, which would include three 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.

Conclusions

The role of Queen’s Counsel in English legal system is really significant. It is not only the quality mark recognized internationally but also a way to encourage the advocates to maintain high standards of their work. Although certain drawbacks could be noticed such as the lack of review and possible removal among existing QCs, the most controversial elements including the selection procedure have been. The future of Silks seems to be assured after the public debate of 2001-2003 years.