A Department for Constitutional Affairs Consultation Paper
Constitutional Reform:
The Future of Queen's Counsel
July 2003
Annexes
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Introduction
This paper asks questions about the current role of Queen's Counsel (or
Silk), its advantages and problems, and possible ways forward. It considers
also whether the Queen's Counsel system is objectively in the public interest
and whether it commands public confidence.
The consultation is aimed at users of legal services, members of the legal
profession, including all current holders of the title of Queen's Counsel
in England, Wales and Northern Ireland. This consultation is being conducted
in line with the
Code of Practice on Written Consultation issued by the Cabinet Office.
It falls within the scope of the Code. The criteria, which are set out in
Annex I of this consultation paper, have been followed.
One of the aims of this paper is to collect evidence to enable us to undertake
initial assessments of the impact on the public, customers, and business.
The information received will be used to inform policy development and to
develop a full regulatory impact assessment, which will be published in
due course.
A full list of those being consulted is at Annex G.
Those being consulted include all holders of the title of Queen's Counsel
in England, Wales and Northern Ireland, the judiciary, legal professional
bodies, other professional bodies, representatives of businesses (including
small businesses), consumer organisations, Government departments and public
bodies.
How to respond
England & Wales
Please send your response by 7 November 2003 to:
Queen's Counsel Branch
Courts Policy Division, Legal & Judicial Services Group
Department for Constitutional Affairs
2nd Floor
Selborne House
54-60 Victoria Street
London SW1E 6QW
Tel: 020 7210 8984
Fax: 020 7210 8925
Email: queenscounsel judicialgroup
Northern Ireland
Please send your responses by 7 November 2003 to:
The Departmental Consultation Co-ordinator
The Information Centre
Northern Ireland Court Service
Windsor House
9-15 Bedford Street
Belfast BT2 7LT
Tel: 028 9032 8594
Fax: 028 9041 2390
Email: informationcentre@courtsni.gov.uk
Representative groups are asked to give a summary of the people and organisations
they represent when they respond.
The Department may wish to publish responses to this consultation document
in due course. Please ensure your response is marked clearly if
you wish your response or name to be kept confidential. Confidential
responses will be included in any statistical summary of numbers of comments
received and views expressed.
Further copies of this consultation paper can be obtained from Queen's
Counsel Branch at the above address or by phoning 020 7210
8984. A Welsh version of the consultation paper will also be available
by contacting the Queen's Counsel Branch or on this website.
Foreword
By the Right Honourable the Lord Falconer of Thoroton, Secretary
of State for Constitutional Affairs and Lord Chancellor
There has long been a debate about the relevance and use of the rank of
Queen's Counsel. The time has come to bring that debate to a head, and to
reach conclusions, after full consultation on the way ahead. Over the last
four centuries, the QC system has become a well-established part of our
legal structure. But the legal system must meet the needs of the public.
The system must be capable of identifying those with the skills and expertise
to deal with any particular dispute. In particular, it should be able to
recognise the wide variety of skills needed to provide the public with the
legal service it needs. This paper therefore explores whether the current
QC system is objectively in the public interest and whether it commands
public confidence.
I have no predetermined answers to the questions raised in this paper.
My aim is to promote discussion and debate among the public and the legal
profession. I hope for the widest range of views from the widest range of
people. In particular, this paper has to cover a number of topics. That
does not mean that I want to hear only from those who wish to deal with
all of them: I welcome responses that only deal with some aspects. I look
forward to hearing your comments.
Executive Summary
The consultation paper discusses the following issues:
The paper begins with some background information about the legal profession
and sets out the differences between Queen's Counsel and junior advocates.
There follows a discussion of the arguments for and against the continuation
of the rank in its current form.
The next section discusses the arguments for and against continuing the
current state role in the quality mark for advocacy services, also outlining
the extent of state involvement in senior lawyer marks in other jurisdictions
and quality marks in other UK professions; and deals with honorary Silk.
The paper then considers the impact on customers and on the market for
legal services of removing the rank, and the implications for existing QCs
of the possible ways in which that might be done.
The final section discusses the award procedures if the rank of QC (or
some other form of quality mark) is deemed necessary or desirable.
The Annexes deal with the current criteria for award, the current selection
procedures, the position in other jurisdictions, and quality marks in other
UK professions and trades.
The Current Position
The two branches of the legal profession: England & Wales
- The legal profession in England and Wales is divided into two branches.
Barristers are specialist legal advisers and courtroom advocates.
At the end of December 2002, there were 10,742 barristers, 1,145 of whom
- around 10% - were Queen's Counsel. Solicitors provide a wide
range of legal services, from general legal advice, through preparing
cases for court, to appearing as advocates. All solicitors can appear
as advocates in the lower courts, and since 1993 have been able to seek
to appear in the higher courts as well [Endnote
1]. In August 2002, there were 89,045 solicitors, 1,787 of
whom had rights to appear in the higher courts and 7 - less than 0.5%
- were Queen's Counsel.
Advocates
- Advocates are the lawyers who appear in court to argue a case before
a judge or tribunal. Barrister advocates are divided into junior and Queen's
Counsel [Endnote 2].
The first Queen's Counsel was appointed at the end of the sixteenth century
to supplement the advice given to the Crown by the Law Officers. During
the seventeenth century, the office "was granted more frequently and came
to be seen as a bestowal of rank on an individual rather than as an engagement
of forensic assistance for the Crown" [Endnote
3]. Until 1996 [Endnote
4], only barristers were eligible for appointment as Queen's
Counsel, but the right was then extended to solicitors with rights to
appear in the higher courts.
- Queen's Counsel have traditionally been appointed annually by The Queen
on the advice of the Lord Chancellor. Lawyers who wish to be considered
are invited to apply to the Lord Chancellor. In the last three years,
individuals have had to pay a fee to cover the administrative cost of
processing their application [Endnote
5]. Following wide consultation with the judiciary and the
profession, the Lord Chancellor then recommends for appointment those
practitioners whom he considers have demonstrated that they meet the criteria
to a degree which marks them out as leaders of the profession, that is
to a standard comparable with those already appointed Queen's Counsel
in the same or comparable practice type [Endnote
6] (the kind of work which lawyers do varying considerably
with the area of law involved). The current criteria and more details
about the appointment process are set out at Annexes A
and B.
- The status of QC is also awarded on an honorary basis to people who
are not practising advocates, but who have made a significant contribution
to the law, for example as distinguished academics.
Formal privileges
- Appointment as a Queen's Counsel brings a number of formal privileges.
First, Silks wear a distinctive uniform. Different forms of dress are
worn by QCs, junior barristers and solicitor advocates. In court, 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.
- The Secretary of State for Constitutional Affairs is addressing the
matter of court working dress in a separate consultation paper, which
is available on the DCA website
and closes for consultation on 14 August 2003.
- Secondly, the judiciary have traditionally given QCs a formal right
to address the court before any other advocates (although it is doubtful
whether this right has any longer any practical significance).
- Thirdly, Silks sit in a particular part of the court. They are entitled
to sit in the front row (also known as sitting "within the Bar in
the Supreme Court"). This tradition is a matter of professional etiquette,
rather than part of the practical process of discharging business.
- It has been argued (including by The Law Society) that Silks' distinctive
dress and position in court alone may offer QCs an unfair competitive
advantage over junior counsel. Some respondents to In the Public Interest?
[Endnote 7] including
the Bar Council and the judiciary [Endnote
8], however, argued that QCs' position on the front row did
not offer them any advantage.
Differences in work undertaken by junior and Queen's Counsel
- Queen's Counsel tend to specialise in different types of work. First,
cases which are legally or factually complex, or of significance, or where
the law is not clear may need specialist expertise. Secondly, in some
areas of the law at least, Queen's Counsel appear in court more often
than junior counsel, and therefore have the chance to develop and practice
specialist skills in advocacy. Thirdly, in cases where there is a large
amount of material to be managed, a Silk may be chosen to lead a team
of advocates. These categories, of course, often overlap. Juniors will
generally deal with more routine cases and matters of lesser complexity.
For example, in publicly funded criminal cases, a judge (when asked to
do so) will certify whether a case requires the use of a QC instead of
a junior, or more than one advocate (including a QC leading other advocates).
Whether or not the use of a QC or more than one counsel can be justified
will depend on the weight and complexity of the case [Endnote
9].
- This tendency to do different kinds of work is an important element
in the role of a QC. For many of the more able practitioners considering
whether to apply for Silk, it marks the stage in their career at which
they have the opportunity to start to take on fewer, but larger or legally
more complex, cases. Responses to In the Public Interest? said
that "the QC kitemark ring-fences that barrister to have more time
to deal with complex matters". It was also said of barristers attaining
the QC mark "if they are good, then they will build up a following
and achieve whatever is the mark of distinction. Furthermore, such a person
works best if another advocate (of less seniority or experience) is teamed
with them to do the work which does not require the attention of the team
leader and to provide cover for the contingencies, particularly with trials
and trial arrangements. Thus trial lawyers in America work the same way
with a leader and team support" [Endnote
10].
- These differences in kinds of work were once a matter of professional
regulation. Until 1977, Queen's Counsel were prohibited by the Bar's Code
of Conduct from appearing in court without junior counsel, and from authorising
the pleadings (the formal statement of the issues in a case) or other
formal documents needed for litigation. Since then, Silks have been able
to appear alone, and to settle and sign such documents. (The Director
General of Fair Trading has, however, questioned whether informal demarcations
still remain. This is discussed further in paragraphs
18-23).
Differences in fees charged by junior and Queen's Counsel
- A focus on fewer, more complex cases usually leads to an increased fee
rate per case. This may explain why appointment as a QC is widely assumed
to be an opportunity for practitioners to increase, perhaps substantially,
the fees they charge for cases. There is, for example, some anecdotal
evidence, backed up by a very small number of respondents to In the
Public Interest?, of practitioners increasing their fees for cases
in which they were already appearing at the time of appointment. The Criminal
Bar Association noted that "fees do generally increase upon appointment
as a QC", but referred to QCs' superior skills and different mix of work.
Others - from both sides of the profession - point out that prices are
a matter for the market to accept or reject. The Department has discussed
with the Bar Council the feasibility of research to examine the effect
of appointment as a QC on barristers' earnings, but it has so far not
proved possible to find a research methodology which would meet the legal
requirements for the protection of sensitive personal data.
- The greater complexity of work taken on by QCs is illustrated, for example,
by the regulations governing remuneration in publicly funded cases. QCs
and junior barristers who are leading in or managing a case are automatically
entitled to higher rates than juniors per se, and juniors' rates in cases
with more than one advocate are linked to QC rates rather than to the
basic graduated fee scheme [Endnote
11].
Other consequences of appointment as Queen's Counsel
- In relation to their practice, QCs benefit from certain exemptions in
the Code
of Conduct for the Bar of England and Wales (which sets out the requirements
for practice as a barrister and the rules and standards of conduct applicable
to barristers in England and Wales). A central tenet of the Code is that
barristers in independent practice must comply with the so-called "cab-rank
rule", and accordingly must work in any field in which they profess
to practise, accept any brief to appear in court, accept any instructions
and act for any person on whose behalf they are instructed. Because of
the expectation that they will deal with particularly complex cases, or
lead a team, the Code specifies for QCs that they are not obliged to accept
instructions to settle documents of the kind normally settled by junior
counsel, nor are they obliged to act without a second (junior) counsel
being instructed if they consider that the interests of the lay client
require the additional instruction [Endnote
12].
The position in Northern Ireland
- There are currently 67 Queen's Counsel in Northern Ireland within a
total practising Bar of just over 550 counsel. The power of appointing
Queen's Counsel in Northern Ireland is exercised by Her Majesty The Queen
acting on the recommendation of the Lord Chancellor who is, in turn, advised
by the Lord Chief Justice of Northern Ireland (the current selection process
for Silk in Northern Ireland is described in Annex C).
Appointments are made every two or three years, although the invitation
to apply is not issued on a fixed basis.
- As the Lord Chancellor has overall responsibility for making recommendations
to The Queen for the appointment of QCs in Northern Ireland, a decision
to change the role of the state in relation to the rank of QC would apply
in Northern Ireland also.
The Involvement of the Crown
- In 2001, the Director General of Fair Trading published a Report
on competition in the professions, which was followed by a progress
statement
in April 2002. In the 2001 report, he raised a number of issues and offered
views on the Silk system's value to consumers, how it operates as a quality
mark and the extent to which the current rank acts to distort competition.
These included:
- whether it is appropriate for the Crown to confer a title on selected
practitioners within a profession which enhances their earning power
and competitive position relative to others;
- whether clients need a quality mark when direct access [Endnote
13] to barristers is restricted;
- concerns about the selection process, such as the absence of a requirement
for professional examinations;
- whether it would be better to have some continuing quality appraisal
to ensure that the quality mark of QC remains justified;
- the extent to which the increase in fees that QCs are said to command
following appointment is a sign of a distortion of competition;
- the possibility that there is or may have been an informal quota
system in making awards which has also distorted competition;
- whether the effective demarcation of certain services between QCs
and junior barristers may distort competition between barristers and
with others (such as solicitor advocates); and
- whether the effective demarcation of certain work to QCs only, despite
the removal of formal demarcations, is enforced by perceptions of
the level of representation needed to have a case presented effectively.
- The Government subsequently published a consultation paper in July 2002
entitled In the Public
Interest?, which sought views on these issues and asked for comments
on the perceived benefits and potential drawbacks of the current system.
Although the paper did not specifically seek comments on whether the current
system should be retained, many of the responses touched on this fundamental
issue. A summary
of the responses to that paper - most of them from lawyers rather
than users of legal services - was 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.
- The Director General of Fair Trading considered "fundamental"
the "issue of whether, given that the historical origins of the [QC]
title no longer correspond to its function, it was right for the Government
to have responsibility for conferring on selected practitioners in a profession
a title that manifestly enhances their earning power and competitive position
relative to others" [Endnote
14].
- A number of respondents to In the Public Interest? said that
the involvement of Government in the selection process is no longer appropriate,
even if some form of quality mark might continue to be useful to the users
of legal services. For example, it is argued that there is a conflict
of interest between the Government's role as a major purchaser of legal
services and its role as guardian of the process which confers a superior
rank on some suppliers of legal services. As noted in paragraph
42, The Law Society argues that it is not appropriate for quality
work in a single profession to be recognised through a formal appointment
by The Queen which confers a specific rank and precedence in society conferred
only on one profession. It also argues that "it is undesirable, in
principle, for the leaders of an independent profession to be selected
by a Government minister, notwithstanding the fact that there is no evidence
that the appointment function has been abused in the recent past"
[Endnote 15].
- These arguments suggest the need for a strong case to justify why the
current role of the rank of QC is of such central importance to the effective
operation of the legal system that it should continue to be made by The
Queen on the advice of ministers. It may be that it is for those who are
not prepared to trust the market to make that case. The
indications from customers (paragraphs 19-21) certainly suggest that the
rank of QC in the legal services market does not provide a useful kitemark
in practice, and that the market might work more effectively if the QC
mark were to be removed [Endnote
16].
- It can be argued that Her Majesty's involvement and the status conferred
by a Royal appointment play a significant part in the wide recognition
given to the QC rank in this country. They may also be significant factors
in making the use of legal services based in England and Wales internationally
competitive.
- There are two arguments linked to the administration of justice which
might also be thought to justify the Government having a role in determining
which people should be identified as being the leaders of the profession.
First, the judiciary's response to In the Public Interest? noted
that "under the established system, the Courts rely heavily on advocates
to perform their role properly and honestly; they could not function effectively
without that support. The importance of this role is heightened in cases
of special difficulty or complexity, or those subject to particular public
or political interest, in which QCs are most likely to be involved." If
Government involvement in the appointment of leading counsel is to be
justified on the grounds of the public interest in the advocate's duty
to the court, there would appear to be a strong argument that the Government
should be at least involved in any disciplinary system to deal with breaches
of that duty. That is currently solely a matter for the Bar Council. Greater
Government involvement in this context would appear very difficult to
reconcile with proper professional independence.
- Secondly, the judiciary's response suggests that the QC system also
plays a useful part in identifying future candidates for appointment as
senior full time judges. The Bar Council, however, says that "most
High Court Judges and other senior judges have been QCs before their appointment.
Nevertheless it is the firm view of the Bar Council that appointment as
a QC should not be regarded as a necessary stepping stone to appointment
to the Bench. The office should be regarded as a position and an honour
in its own right." The Bar's view is reflected in current appointment
procedures. Whilst there are similarities in some of the criteria for
appointment as a QC and for judicial positions, the latter are considerably
wider: the qualities needed to be a good advocate are not necessarily
those needed to make a good judge. It is, however, the case that, apart
from Treasury Juniors [Endnote
17], barrister High Court judges have invariably been Silks.
Despite the clear differences in the criteria, and efforts to improve
the transparency of the system, that might have contributed to an impression
amongst some that the rank of QC is restrictive because it narrows the
field from which the higher judiciary is usually recruited.
- The extent to which the Government should run the process might also
be affected by how eligibility for a quality mark was determined. For
example, it might be less appropriate for the Government to control a
system which depended on examination of expertise in specialist areas,
or required re-accreditation at regular intervals, since these measures
would increase the dependency of lawyers on the Government for the continuation
of their professional status.
- Under the current constitutional arrangements, the rank of QC can only
continue with state involvement. That is because it is an appointment
which creates a specific (though purely notional) relationship with the
Crown and which carries a defined precedence. It can therefore only be
made by The Queen. Currently that requires the involvement of a minister.
Removing the role of the Government but retaining appointment by The Queen
would entail a significant change to our wider constitutional arrangements.
One of the limitations on the power of the Crown in our constitutional
monarchy, is that The Queen acts - including when making appointments
- only on the advice of Her ministers, who are accountable to Parliament.
This ensures that ministers and not the Crown personally can be held to
account by Parliament for the appointment process.
- The powers of Parliament to change the normal constitutional arrangements
in this respect by legislation are effectively without limit. If it were
thought desirable, Parliament could of course decide to pass legislation
that would empower someone other than ministers to advise The Queen on
appointments as Queen's Counsel [Endnote
18]. That could be a public body: there are for example, independent
regulatory bodies with no ministerial involvement in their work such as
the Electoral Commission, which operate within a framework laid down by
Parliament. It could also be a body or bodies from completely outside
the public service: the most obvious options being the legal professional
bodies.
- The role of an independent body overseeing the appointment of Queen's
Counsel would, however, not simply be regulatory and would not be subject
to Parliamentary approval. If it were decided that the rank of Queen's
Counsel should remain, the removal of all ministerial accountability to
Parliament for this process would be a major innovation and would require
careful consideration. Different issues would arise in relation to a wholly
independent public body, such as a Judicial Appointments Commission on
the appointing model discussed in the consultation document on that subject;
and one with close links to the legal profession, such as one or more
of the professional bodies. In particular, the latter option would appear
to be subject to the concerns raised by the Director General of Fair Trading
as to whether it is appropriate for the Crown to confer a title on selected
practitioners within a profession which enhances their earning power and
competitive position relative to others, and to The Law Society's concern
as to whether it is appropriate for that form of recognition to be confined
to a single profession.
- A less radical option would be for the relevant minister to take advice
from a third party. For example, it might be possible for judges, with
suitable administrative support, to conduct the Queen's Counsel competition
and advise the relevant minister. As with the proposals being discussed
in relation to the Judicial Appointments Commission, that could operate
in different ways according to the amount of discretion the minister had
in relation to the appointments. On one approach, all candidates put forward
could be endorsed by the recommending body as meeting the criteria, and
could be ranked according to the assessment of their suitability, but
the minister would be free to recommend, or not, anyone on the list. On
another, the minister would be offered only the names thought suitable,
and be expected to recommend for appointment the whole list. His or her
discretion would be limited to rejecting the whole list and requiring
that different names be submitted. As with the option of recommendations
being submitted directly to Her Majesty, different approaches would be
required if the body making recommendations to the minister was wholly
independent, or had direct links to the legal profession. It is particularly
likely in the latter case that Parliament would wish to be satisfied that
the real decision-maker under a system of this kind could be held accountable
for its decisions. If respondents wish to put forward suggestions which
follow this model, careful thought must be given to how adequate accountability
is to be achieved. Any change along these lines would also require legislation.
- It might be possible for the proposed Judicial Appointments Commission,
under either of the models being considered for it, to assume responsibility
for conducting the annual Silk round or for advising the relevant minister
who should be recommended to The Queen for appointment. This would have
the obvious advantage of bringing together, in a single, independent body,
the assessment of candidates for the two major groups of appointments
from among the legal profession for which the Lord Chancellor is currently
responsible.
- There are, however, arguments for treating these groups separately.
The criteria for judicial appointment, and for recognition as a leader
in the profession of advocacy are very different, and so is the evidence
as to whether the criteria are met. There has in the past been considerable
confusion as to the extent to which appointment as a Queen's Counsel has
been a prerequisite for appointment to the senior judiciary at least (an
issue also discussed in paragraph 25). Asking a
commission to take on the task of assessing candidates for Silk might
arguably perpetuate this confusion. It might also create a significant
risk that the focus of a judicial appointments commission would be lost
if it also had to run a second, and rather different process.
The role of the state in other (non-UK) jurisdictions
- The extent of state involvement in Queen's Counsel (or equivalent) schemes
in other jurisdictions varies (see Annex D for a range
of examples). In many cases, the state is responsible for making the final
appointment, often on the recommendation of the Chief Justice or a committee
of selection. In other jurisdictions where - unlike here - the constitution
permits it, appointments are made directly by the Chief Justice or on
his or her recommendation. Some jurisdictions have no mark of distinction
of quality comparable to the QC mark.
- The approaches taken in other jurisdictions are clearly of interest
when considering what the system should be in England and Wales, and Northern
Ireland. The wide range of different schemes and of the division of functions
within different branches of the legal profession means that they are
of limited value for establishing the most appropriate policy for these
jurisdictions.
Government involvement with quality marks in other UK professions
- There are a number of examples of quality mark schemes in other professions
(see Annex E for details). Many are Government-sanctioned
schemes. But one key difference is that the Government's role is usually
to regulate or oversee the system by which the quality mark (or equivalent)
is awarded, rather than directly to make the awards itself.
- It might be argued that a greater degree of involvement might be justified
in the provision of legal services, since the Government obviously has
a vital role in safeguarding the public interest in respect of the fees
paid for publicly funded work. Certainly, it must ensure that public money
is properly spent. This is achieved through various legal aid remuneration
and quality assurance schemes, which are designed to reassure members
of the public who need legal information, advice and other help that they
will receive a quality assured service. But providing a framework within
which standards of service can be set might arguably be distinguished
from making individual awards which confer a rank, but give no guarantee
of levels of service.
Question 1: Do you consider it appropriate for the state to be awarding
a promotional rank in a profession? What are your reasons?
Question 2: Do you consider that the public interest would suffer if
the Government were not directly responsible for the selection process
for any quality mark scheme? What are your reasons?
Question 3: If you do not consider that the state should continue to
be involved in the award of QC, can a change to the current constitutional
arrangements which prevent The Queen from acting other than on the advice
of ministers be justified? What form should that change take (including
adequate measures for accountability to Parliament)? What are your reasons?
Question 4: Can an arrangement under which the relevant minister makes
recommendations, having been guided by another body, be justified? To
what extent should the minister be bound to accept the advice of that
body? What form should that arrangement take (including adequate measures
for accountability to Parliament)? What are your reasons?
Question 5: If you support the option in Question 4, as the Government
will be establishing a judicial appointments commission, should this be
the advising body? What are your reasons?
Question 6: If it were to be decided that the rank of QC should be discontinued,
do you consider that the Government should have an ongoing role in overseeing
the framework of any new quality mark scheme that the Bar Council and/or
the Law Society (or any other body) might decide to introduce? What are
your reasons?
Honorary Silk
- Paragraph 4 explains that honorary Silk is sometimes
awarded to individuals who are not in practice, but who have made a significant
contribution to the law. If the rank of QC were abolished, the practice
of awarding honorary Silk would also cease since the prestige it confers
comes from placing those who receive it on the same level as those recognised
as the leaders of the practising profession by the award of practising
Silk. If the professions were to develop other ways of recognising excellence
as a practising professional, they might wish also to consider whether
and if so how those quality marks might be extended to non-practitioners
such as leading academic lawyers.
Should the Rank of Queen's Counsel Continue?
- In the Public Interest? asked users of advocacy services (clients
instructing a solicitor or going direct to a barrister; solicitors; or
foreign lawyers) how useful the QC mark was to them. The following points
were made in favour of the current system by barristers and solicitors:
- it provides a body of advocates who are identified as leaders of
their profession and so gives a clear mark of distinction as an advocate;
- 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;
- it assists solicitors in selecting the quality of legal assistance
their client needs, particularly in areas with which the solicitors
may be less familiar;
- it allows users to instruct with confidence advocates of whom they
have little or no experience;
- 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; and
- it promotes and maintains the level of expertise amongst practitioners,
which is important for the court system; and
- it provides a career structure for barristers.
- The Bar Council emphasised that QC status "signifies that the holder
is at the top of the profession as a practising advocate". Similarly,
the judiciary considered the QC system "not simply as a quality mark in
the market, but as an important part of the machinery of justice".
- Other respondents, however, did not find the QC mark to be of use [Endnote
19]. 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. Competence, reputation
and previous experience were said to be the deciding factors when instructing
an advocate in a complex case. Many solicitors thought there were better
ways of assessing these qualities than by relying on the QC status alone,
and that it was part of their role to find the right advocate for a case.
Many firms therefore had arrangements for assessing systematically how
well they thought barristers had done. Where solicitors were unsure about
whom to instruct they would consult others both inside and outside their
own firms. To help in this process, there is a range of reference books
and web sites which identify the experts in different areas of practice.
Whilst this material might be focussed, regularly updated and easily accessible
by solicitors and members of the public, it could also be subject to bias
or error.
- Other concerns included:
- the rank of QC is not a reliable guarantee of quality or - in an
increasingly specialist market - expertise (particularly as the current
system does not include a stage for review and possible removal, or
indicate the area of any specialism);
- the rank restricts competition and does not allow market forces
freely to determine the allocation of resources. For example, it is
suggested that choice is reduced because the system discourages the
use of highly competent junior counsel;
- the division of the barristers' profession into only two ranks does
not constitute a sufficient career structure, and the emphasis on
the attainment of QC places a disproportionate premium on that step;
- the current focus on oral advocacy in court puts at a disadvantage
any barrister who specialises in areas of the law where the majority
of his or her work is on paper or is directed towards achieving resolution
out of court. Solicitors are seen to be similarly disadvantaged.
- The Law Society in particular has for some years been concerned that
"the designation of Queen's Counsel is essentially a public honour accorded
to a private group. There is no logical reason why such an honour or its
equivalent might not be given to outstanding doctors, dentists or accountants.
The rank has long since ceased to have any relationship with being Counsel
for The Queen. The designation is a mark of patronage that is inappropriate
in the modern age" [Endnote
20]. The Law Society has therefore not participated in the
automatic consultation process for Silk appointments since 2000.
- A number of the responses to In the Public Interest? addressed
the Director General of Fair Trading's views on the possible anti-competitive
effects of Silk. One response said "we think that [the QC system] very
clearly operates to distort competition in a number of ways… We do
not think that there is any need for a quality mark in the market for
individual barristers' services. Those services are mainly purchased by
specialists and there is ample information publicly available about the
relatively small number of barristers to enable those specialists to make
informed choices. Direct access has not so far been…sufficiently
extended to the point where the question arises about whether sufficient
information is available to members of the public" [Endnote
21].
- Another view was that "distortion in the market takes place where candidates
have been unsuccessful in applying for Silk or, fearing they would be
unsuccessful, do not apply for Silk. There are several such very good
persons who fall into this category at any one time. As they become more
senior, work may be diverted from them to people who have successfully
applied for Silk. This is because, in some cases, a purchaser simply wants
a QC for the sake of having a QC and even though the other barrister -
of equal seniority - would do the job as well or sometimes better, because
he or she is not a QC the work is not forthcoming… The authors of
this report are aware of some senior juniors whose practices have declined
after the age at which the market considers they should be in Silk if
they were ever going to be" [Endnote
22].
- Some respondents raised concerns that the formal privileges of the rank
gave QCs a special prominence in the court room through dress and location
which could give an unfair competitive advantage, although the judiciary
considered they were well able to discount this when hearing cases.
- Taken together, the findings of the OFT report and the comments on how
the current system operates made in response to In the Public Interest?
suggest that, while a quality mark may have some benefits, the current
system may:
- directly or indirectly distort competition in relation to the provision
of advocacy services; or
- not be the most effective in meeting the modern needs of users of
legal services, in particular by giving a disproportionate weight
to resolving disputes by litigation in open court.
- The Government's provisional view is that retention of the rank in its
current form can only be justified if:
- it serves a helpful purpose for users of legal services;
- any benefits clearly outweigh any problems, and in particular the
extent to which it may distort competition in the market for legal
services and its possible effect on fees; and
- its possible benefits cannot be provided in other ways free of such
disadvantages.
The Implications of Removing the Rank of Queen's Counsel
- If the Government concluded that the rank of Queen's Counsel should
not continue, there would be three key issues to consider:
- the impact on customers using legal services, including court users;
- the impact on the legal services market; and
- the position of existing and aspiring QCs.
The impact on customers using legal services, including court users
- The response to In the Public Interest? did not produce many
concrete examples of the QC rank being used as an effective guide when
selecting an advocate. A number of respondents said that it had a general
usefulness, but more detailed responses tended to argue that what was
relevant to an instructing solicitor was the individual advocate's experience
and skills. They had frequently found the right junior counsel to be of
better value than a QC. It was also said that the rank of QC drove up
legal costs unjustifiably. There was a perception that QCs were now instructed
in circumstances where their particular skills were not really needed:
for example, because it might be thought that judges would pay more attention
to a QC's argument, or because a simple equality of arms was needed -
just because the other side had already instructed a QC. Such perceptions
could have the effect of tilting the market in favour of QCs and against
experienced juniors.
- If the responses give an accurate picture of how solicitors and others
decide when to instruct, abolition of the rank could therefore have two
beneficial effects in relation to these problems and to the others identified
in paragraphs 19-21. First, it could lead to a more
effective reliance on information about individual advocates and their
skills, so that consumers would pay only the price reflecting the real
value of the service they are buying, rather than paying for a badge or
QC 'brand'. Provided that information flowed freely, the market would
determine which barristers could command higher prices on the basis of
the quality of their work.
- Secondly, abolition of the rank could reduce costs for users because
those who are currently QCs might have to review their fees to become
more competitive with experienced junior counsel. Conversely, experienced
junior counsel might command higher fees if the QC 'ceiling' were removed.
If, however, it is thought that fee levels in the current system are governed
only by the skill and expertise of the advocate in any particular case,
there might be no significant change, because individuals are already
paid according to the extent of their specialist input.
- In most cases, barristers are still instructed through a solicitor.
The Bar Council has, however, established a scheme (BarDIRECT) which allows
certain clients to instruct barristers direct. Organisations or individuals
with expertise in particular areas of the law (for example, the Architects
and Surveyors Institute, the Association of Authorised Public Accountants,
the Institute of Chemical Engineers and the Association of Building Engineers)
can apply to the Bar Council to be licensed to instruct barristers directly
in those areas. The licence can cover both advice and representation and
permits licensees to instruct barristers either on their own affairs or
on behalf of their clients. In addition to the BarDIRECT scheme, members
of some professional bodies are able to instruct barristers on matters
within the scope of their professional expertise before tribunals and
magistrates' courts using the Direct Professional Access scheme.
- In response to the Office of Fair Trading Report Competition
in Professions
the Bar Council has also recently put forward proposed new rules to the
Lord Chancellor for his approval. These rules provide for members of the
public to instruct barristers directly. The circumstances in which barristers
would be able to accept instructions are limited, however, and preclude
work in the areas of immigration and asylum, family and criminal proceedings.
The Bar Council argues that this is due to the sensitivity of these areas
and the need for a high degree of ongoing litigation support, which barristers
are generally not equipped to provide. The Bar Council's application is
under consideration.
- The Department has, however, received competition advice from the Director
General of Fair Trading (DGFT), who has argued that the Bar Council's
proposal to limit direct access in areas such as immigration and asylum
is largely unnecessary. The DGFT has also argued that the continuing prohibition
on litigation by barristers in independent practice will greatly restrict
the impact of the proposed relaxation of the direct access rules. This
advice is published on the OFT's website at www.oft.gov.uk.
- If the rank of QC were to be abolished, it might be argued that this
would make it more difficult for users of the direct access scheme to
identify the appropriate advocate in their case. Alternatively, it may
be that the QC rank does not greatly assist at present, or that other
schemes are needed to meet the needs of non-lawyer customers. For example,
the current rank is a general one, which gives no indication of areas
of practice, and non-lawyers might fail to appreciate the importance of
specialist expertise in some areas of law. It might also be argued that
the state's involvement in the QC scheme could not be justified by its
advantages for the direct access scheme since that benefits only one sector
of providers of legal services, in a widening market. The possibility
that the legal profession might wish to develop further its own arrangements
for recognising high quality work were the rank of QC to be abolished
is discussed further in paragraphs 81-83.
Structural implications
- It will clearly be important to identify both the economic and structural
impacts on the legal services market of abolishing the rank before a decision
can be made about whether to take this step.
- Most obviously, abolishing the rank (or making it of no relevance to
practice as an advocate) would remove the current clear division of advocates
into leading and junior counsel, unless the relevant minister and the
judiciary agreed to give formal recognition of some kind to a future scheme
developed by the profession.
Selection for publicly funded work
- Another obvious issue is the arrangements for the remuneration of publicly
funded work. The current QC rank provides an established if broad indicator
of expertise around which to structure the rates for handling more complex
work. For example, in criminal cases, remuneration is divided into different
bands depending on the nature of the case, with higher rates paid to QCs.
The courts have powers to review the complexity size or seriousness of
individual cases, and to authorise the use of a QC alone or more than
one advocate of specified rank. If the Government were to decide that
the rank of QC did not provide an adequately comprehensive and flexible
guide to the quality of advocacy services, or that the involvement of
the state was not otherwise justified, it would be necessary to change
the basis of remuneration for the high standards of work required in complex
cases. It should be noted that the remuneration systems will almost certainly
need to be reviewed in any event, to support the aims of the criminal
justice system's Case Preparation and Progression Project, which is developing
improvements in the way criminal cases are brought to court, and which
the Department aims to implement in 2005.
- One option might be to move to a system where a more flexible range
of different rates would be paid according to the complexity, size or
seriousness of a case or type of case. This would have to be coupled with
a more sensitive means of identifying whether a particular practitioner
had the appropriate skills and experience to take a case, perhaps using
the Legal Services Commission's [Endnote
23] contracting scheme as a model [Endnote
24]. But the responses to In the Public Interest?
raise questions about the extent to which the QC rank can provide a sufficiently
flexible and focussed indicator of expertise and specialism. It would
appear that firms of solicitors are already using rather different methods
for deciding whom to instruct to appear in challenging cases. The Legal
Services Commission is also developing a range of different methods of
ensuring quality in publicly funded services including contracting schemes.
There are therefore several approaches to finding new and better ways
of matching people to cases which can be explored.
- The Government aims to announce its decisions on the future of the rank
of QC early in 2004. A more flexible graduated fee scheme is not to be
introduced until 2005 at the same time as changes arising from the Case
Preparation and Progression (CPP) Project. It would, for practical reasons,
be difficult to introduce changes any sooner. That is because there needs
to be extensive consultation on changes and a substantial period after
that (6-9 months) to deliver the necessary software changes in the Court
Service and in Barristers' Chambers. The earliest practicable implementation
date would therefore be autumn 2004. But additional reform six months
before the CPP reforms were implemented would cause unnecessary upheaval
and cost for all concerned. It would therefore be preferable to introduce
all these changes on a single date.
- If the Government decides that direct state responsibility for granting
quality marks to senior advocates is to cease, it will be necessary to
make immediate interim changes to the rules governing remuneration for
publicly funded work. These would ensure that, if no fresh appointments
to the rank of QC were made or the rank was abolished, higher rates of
payment were still available for the more difficult, complex, or substantial
cases. One possibility is that the existing rule structure would remain
much as it is now but that it would be a matter for the solicitor responsible
for the case to ensure that the instructed advocate or advocates had the
necessary higher skills.
Selection for other kinds of work
- Another issue is that the QC rank is used to identify the seniority
of practitioners to take on particular kinds of work. Examples of this
can be found in some legislation which provides for QCs to be appointed
as arbitrators [Endnote 25],
and some departmental practice, such as the use of QCs to hear cases on
the Restricted Patients Panel in Mental Health Review Tribunals [Endnote
26]. The use of a QC is also a condition in many contracts
(where it is frequently the case that an opinion from a QC is a pre-condition
to the acceptance of liability). In contracts where the parties are in
different countries, it is also not infrequent to stipulate use of a QC
to arbitrate in the event of a dispute, marking the international recognition
which the rank carries.
- It seems likely that these provisions have developed in the absence
of more focussed selection criteria. Arguably, selection through training
or specific experience would in principle be better. In relation to arbitration
and similar issues, for example, a suitably demanding qualification in
arbitration and mediation techniques might be more appropriate than a
quality mark which depends for award very largely on success in adversarial
litigation. Similarly, training in the more complex aspects of mental
health law could be a more effective selection criterion than a rank which
gives no indication of specialist judicial skills in a particularly sensitive
area.
Other implementation issues
- The structural use of the QC status described in the two paragraphs
above would require some legislative change if the status was to be changed
substantially or abolished. The secondary legislation governing legal
aid remuneration would also have to be changed, as would a Pastoral Measure
of the Church of England [Endnote
27] and two pieces of secondary legislation providing for the
use of QCs as arbitrators or commissioners [Endnote
28]. Some primary legislation would become otiose and would
need to be tidied up at a suitable legislative opportunity. Practice Directions
would be needed to make any changes deemed necessary to QCs' rights of
pre-audience [Endnote 29],
the QC "front row" placing in court [Endnote
30] and also to court dress [Endnote
31]. Government guidance, or possibly legislation, might be
needed to lay out how contractual clauses should be construed in the absence
of a body of QCs.
Questions on retaining the rank of QC
Question 7: Do you consider that the rank of QC in its current form benefits
the public? What are the reasons for your view?
Question 8: In the light of the arguments set out in this section, do
you think the current system should be abolished or changed? What are
the reasons for your view?
Question 9: Do you consider that the legal services market is sufficiently
sophisticated to allow solicitors to choose appropriate barristers without
the need of the QC mark? What are your reasons?
Question 10: If the rank should continue, should it also continue to
enjoy its traditional formal privileges of dress, position and precedence?
Question 11: If you consider that the QC rank should be abolished, do
you consider that it should be replaced by another form of quality mark
(whether it be granted by the state, the professions, an independent body
or the proposed Judicial Appointments Commission)? What are your reasons?
(see also the sections on state involvement and the key elements of a
quality mark)
Questions on the possible effect of its abolition
Question 12: What do you consider would be the impact (positive or negative)
on customers of legal services if the rank of QC were to be removed? Do
you consider there would be any increase or decrease in legal costs? What
are your reasons?
Question 13: What do you consider would be the impact on advocates' fees
(QCs and juniors) if the rank were to be removed?
Question 14: For those clients who qualify to use the Bar Council's current
Direct Access scheme, what would be the impact (if any) of the removal
of the QC rank?
Question 15: What changes, or other kind of scheme, might better help
non-specialist solicitors or non-lawyers to choose the right advocate
for their case?
Questions on structural implications
Question 16: If a different approach had to be taken in matters where
QCs are currently regularly used, what ways would you suggest for identifying
practitioners with a suitable level of expertise or case-management skills,
and what sources of information would you use?
Question 17: What other implications do you consider there would be,
positive or negative, including on price, for the legal services market
if the rank of QC were to be removed?
Question 18: What measures are needed to deal with circumstances where
the use of a QC has been stipulated as a contractual condition?
The position of existing and aspiring QCs
- There is no statutory provision requiring or authorising the appointment
of QCs. Appointments are made under the royal prerogative, that is the
non-statutory powers of the Sovereign acting on the advice of ministers.
- If the Government decided that it was no longer appropriate for the
state to provide a guide to the quality of advocacy services through appointment
by The Queen to a rank, careful consideration would need to be given to
transitional arrangements. There are a number of options, with differing
advantages and problems, and the list which follows may well not be exhaustive.
- First, all current appointments could be revoked with immediate effect.
Before deciding on this option, the Government would of course have to
pay the closest attention to the interests of the existing QCs who had
worked very hard to win a high professional distinction, and who had personally
done nothing which would warrant its removal. It might well be sensible
to recognise that it is likely the market would readily recognise the
rank of QC was no more than a previous recognition of distinction. But
there are competing interests. It is arguable now that the current criteria
for appointment disadvantage those lawyers whose work is also of the highest
quality, but does not centre on advocacy in the comparatively tiny proportion
of cases which end up in court. The more time which elapsed after any
decision not to appoint more QCs, the stronger would grow the arguments
that retaining the title gave QCs an unfair competitive advantage against
those who could have aspired to appointment in due course, and perhaps
against those who had been accredited in any other schemes subsequently
established by the professions. This option has the advantage of creating
a clear level playing field into which other ways of recognising excellence
as a practitioner could develop. It may also be said to be the one least
likely to confuse potential customers who were not alert to possibly subtle
differences between the criteria for appointment as QC and any subsequent
schemes.
- In assessing these competing factors, the Government would need to consider
whether potential consumers would be confused by preserving existing appointments
in some form or - on the contrary - would understand that allowing current
appointees to retain their award would reflect no more than a previous
recognition of distinction which did not provide information on the current
ability of those lawyers, or of other lawyers who were now unable to attain
that distinction.
- Secondly, the current appointments might continue as a purely honorific
title, not to be used for professional advantage. This option has the
merit of not disturbing the rank's recognition of the current appointees'
past achievements, and of significantly reducing any unfair competitive
advantages. It could however be difficult to make fully effective - it
might for example be necessary for the Bar Council and The Law Society
to provide that it would be a breach of professional etiquette to use
the superseded award for professional advantage. It might also create
a risk that at least some customers would be confused by the importance
to be attached to having once been a practising QC and the extent to which
the retained title continued to mark excellence, particularly in comparison
with any other ways of marking excellence which could develop. Though
it must obviously be recognised that the fact of being a QC once would
inevitably be known.
- Thirdly, the current appointments might continue indefinitely, with
or without the current privileges of the appointment. This would give
greatest protection to the interests of current QCs. Those who would have
aspired to that appointment, and perhaps those who join other, more focussed
forms of accreditation subject to renewal or removal might well argue
strongly that it would also perpetuate an unfair advantage. That inequality
would remain for a long - perhaps an unacceptably long - time. Because
it is an appointment for life, the value of appointment as QC would be
likely to diminish over time and in the face of newer schemes. And it
might seriously confuse many customers, particularly those not used to
the current structure of the legal profession, for at least the medium
term.
Question 19: If the Government decided that it was no longer appropriate
for the state to provide a guide to the quality of advocacy services through
appointment by The Queen to a rank, which of the options given for transitional
arrangements, (if any) should be preferred, and why?
Question 20: If you do not support these options, what other approach
would you suggest and why?
Implications for other UK jurisdictions
- Apart from a direct impact in Northern Ireland discussed in paragraph
17, a decision to change radically state involvement in QC appointments
in England and Wales would have a direct impact in the Crown Dependencies.
The Law Officers of the Crown in the Channel Islands (the Attorneys and
Solicitors General of Jersey and Guernsey) and the Attorney General of
the Isle of Man (which does not have a Solicitor General) are given the
rank of QC, learned in the law of their respective jurisdictions, on appointment.
This is done by warrant of the Lord Chancellor in his capacity as Privy
Counsellor with particular responsibility for the Crown Dependencies.
- The position in Scotland is different; recommendations to The Queen
for the appointment of QCs in Scotland are now made by the First Minister
of the Scottish Executive. (Annex D gives more details
about the procedures in these and other jurisdictions).
Methods of Award
- The responses to In the Public Interest?, and general discussion
of the current system for awarding Silk (including comments from consultees
in recent application rounds), raise a number of important issues about
the scope of the current scheme and how appointments are made. These include:
- the importance attached to advocacy in current awards;
- the differences between the quality mark systems for barristers
and for solicitors;
- the degree to which current appointment procedures are understood,
and transparent; and
- the need for clear accountability in quality schemes.
Advocacy
- As explained in Annex A, the award of Queen's Counsel
recognises excellence in advocacy skills, with a particular emphasis on
oral advocacy in court. This has been criticised on a number of grounds.
First, in relation to current barristers' practices it has been pointed
out (for example, in relation to a number of specialist applicants for
Silk) that there are areas of practice, such as tax, trust and some aspects
of Chancery law, where litigation is rare. This applies also to many areas
of employment law. In these areas there are barristers who are regarded
as specialists of the very highest ability. Their work, however, is largely
carried out through advice on paper and in conference, or through negotiation
with the other side (including, for example, the tax departments), rather
than in open court. They are therefore at a considerable disadvantage
in applying for Silk.
- Similar arguments apply to a number of solicitor applicants for Silk.
In substantial commercial litigation, for example, it is now usual in
a number of firms of solicitors to bring in leading counsel only at a
comparatively late stage in a case. Decisions about the strategy to be
followed are made, and much preparation work is done, either by solicitors
alone or with junior counsel only; and much negotiation with the other
parties and most or all of the important advocacy work in preliminary
hearings in the case is handled by the senior solicitors in charge of
the litigation. Their appearances in open court remain however comparatively
infrequent, since it is exceptional not to bring in leading counsel for
the substantive hearings, to get the benefit of specialist persuasive
and case management skills. Despite extensive strategic and advocacy experience
these solicitors therefore see themselves as at a very considerable disadvantage
in applying for Silk.
- More generally, it is said that the nature of litigation has changed
since the civil justice reforms, and continues to do so. There is a much
greater, and court-managed, emphasis on seeking settlement at an early
stage. Where it appears that the parties may need assistance in coming
to terms, there is increasing use of alternative forms of dispute resolution
such as mediation. Arguably, it is now wrong in principle for advocacy
in adversarial litigation to play a central role in a legal quality mark.
Different marks for barristers and solicitors
- If it is felt that less reliance should be placed on advocacy, there
might be scope for reducing the current significant differences in the
current quality marks between the two branches of the legal profession.
For individual barristers, there is only one such mark, appointment as
QC; a single, life-long mark which gives no indication of area of practice
(although chambers may seek the BARMARK® [Endnote
32]). The Law Society has, however, set up a range of specialist
schemes and panels, the members of which have to show that they do a significant
amount of the relevant kind of work, and have to resubmit themselves at
regular intervals. There is an obvious argument of principle that it would
be easier for customers not used to the structure of the profession for
there to be as great a measure of comparability as possible in the quality
marks used in the two main branches of the profession.
Current selection procedures
- Respondents to In the Public Interest? were critical of a number
of aspects of the current QC selection process. The majority of the issues
related to:
- the concentration on advocacy;
- the consultation process, with concerns that it was not sufficiently
focused on those consultees who knew applicants sufficiently well
to be able to comment; it did not target a sufficiently representative
range of consultees; or it was not sufficiently evidence-based; and
- the lack of a regular re-appraisal or re-accreditation process.
- Others, including the First Commissioner for Judicial Appointments [Endnote
33], also suggest that the current system is still not sufficiently
understood, or perceived to be sufficiently transparent.
Cost
- Having been continually improved since 1997, the selection process for
the appointment of QC is now as rigorous, transparent and fair as it has
ever been. The changes made for the 2003 round of applications resulted
in a better focussed system, with greatly enhanced scrutiny. The Commission
for Judicial Appointments is auditing the 2003 round. The Department has
itself already identified possible further areas for improvement. Initial
work, however, suggests that an adequately transparent process with a
proper audit trail can only be achieved at the cost of a significant increase
of the application fee. This may have the discriminatory effect of deterring
applicants who found they could not pay such a high fee, but would otherwise
have been able to pass successfully through the process.
Appointments not made by the state
- It is the Government's provisional view that its continued involvement
in the appointment of Queen's Counsel needs strong justification. If the
Government concluded that involvement should cease it would be for the
branches of the profession to decide whether a replacement is necessary,
and if so what form it should take. On competition grounds, however, it
would obviously be necessary for any replacement scheme to be administered
on transparent and objective grounds, and for any restrictions to be based
on qualitative, rather than quantitative, factors.
- Respondents to In the Public Interest? also suggested a number
of elements as being key to any quality mark scheme, such as:
- a rigorous selection process (possibly including examination and/or
interview);
- an appeal system for unsuccessful candidates;
- a quality mark which is of more practical use to customers, perhaps
through the identification of an individual's area of expertise (eg
"QC (family)"); and
- regular re-appraisal or re-accreditation.
- A new system of recognising high quality in the provision of legal services
would obviously be a major change in the market for legal services, and
a new development of the role of the professions, whether the new marks
were run directly by the professional bodies or by some other organisation.
- The importance for the public of maintaining general and informed access
to high quality legal services, raises the question of whether the Government
should continue to be involved by setting out for any branch of the profession
broad standards and objectives which quality mark schemes should be expected
to meet.
Question 21: Should the quality mark be granted only after, for example,
examination, or interview? Why?
Question 22: Should it include regular re-appraisal or re-accreditation?
How might this be achieved?
Question 23: Should it include appeals and complaints mechanisms? How
would you envisage them working?
Question 24: Do you think some new form of quality mark is desirable?
By whom should it be run, and how? What would be the impact on the market
for legal services?
Question 25: If some form of quality mark is necessary, should it continue
to focus primarily on advocacy?
Question 26: If you consider that any criteria should reflect a broader
range of skills and experience, how do you think this might be achieved?
What other skills do you consider should be recognised and tested?
Question 27: If you consider that the criteria should focus on advocacy,
should there also be a parallel mark for solicitors and barristers who
undertake the many other types of legal work (including the issuing of
proceedings, the preparation of instructions for advocates, and many matters
which do not usually involve the court, such as conveyancing)? What differences
would you envisage there being between the two schemes?
Annex A: Criteria for Appointment in England and Wales
The following is taken from the 2003 Guide for Applicants [Endnote
34].
"The Lord Chancellor will only recommend for appointment as Queen's
Counsel those practitioners who display the following attributes to a degree
which marks them out as leaders of the profession, that is to a standard
comparable with those already appointed Queen's Counsel in the same or analogous
practice type:
Advocacy:
- Outstanding ability as an advocate, to a standard to be expected of
Queen's Counsel in the applicant's field of practice.
Legal ability and practice:
- Sound intellectual ability and a thorough, comprehensive and up to date
knowledge of law and procedures in the applicant's field of practice;
- A large and high quality practice based on demanding cases.
Professional qualities:
- Integrity; having:
- a history of honesty, discretion and plain-dealing with professional
colleagues, lay and professional clients and the courts;
- independence of mind and moral courage; and
- the trust and confidence of others.
- Professional standing:
- having the respect of the Bench and the profession in observing
the advocate's duty to the Court and to the administration of justice
[Endnote 35],
while presenting their client's case; and
- being formidable, fair and honourable as an opponent.
- Maturity of judgement and balance.
The Lord Chancellor will recommend for appointment those who appear to
him most fully to satisfy the above criteria, regardless of gender, ethnic
origin, sexual orientation, marital status, political affiliation, religion,
disability or professional background.
Appointment as Queen's Counsel is essentially a mark of distinction in
advocacy. Therefore, the Lord Chancellor will have regard principally to
the qualities displayed by candidates in their practice before the higher
courts of England and Wales or the European Court of Justice or the International
Court of Justice or the European Court of Human Rights or other significant
fora (such as planning enquiries, employment tribunals, financial services
tribunals, arbitral tribunals, and the Lands Tribunal). In this context
advocacy is not confined to oral advocacy, but also includes, for example,
skeleton arguments. Supportive evidence of excellence in advocacy in other
fora, such as lower courts, will be taken into account.
The Lord Chancellor also takes into account any evidence relevant to the
criteria available from that part of an advocate's practice that is not
concerned with advocacy.
Period in practice
The Lord Chancellor expects applicants to have sufficient professional experience
to be credible candidates for appointment. Applications will be accepted
from candidates with 10 years, or more, qualified service in the legal profession
but in practice successful candidates will usually have between 15 and 20
years' experience in the profession.
As appointment as Queen's Counsel is essentially a mark of distinction
in advocacy, the Lord Chancellor also expects that an applicant will have
practised as an advocate in the higher courts or similar for a long enough
period to have developed the ability and experience to justify the appointment.
In practice, successful candidates will usually have at least 5 years' advocacy
experience in the higher courts or similar fora.
Age and seniority
There are no age limits and each application is considered on its merits
without regard to age or seniority.
Fees
Although the Lord Chancellor regards the level of an applicant's fees as
an indication of the size of his or her practice, it is not his policy to
recommend appointment as Queen's Counsel solely to the highest earning applicants
nor is there a minimum threshold of earnings beneath which an application
is ruled out. Provided that it is clear, from the level of fees and from
the other information provided on the application form, that an applicant
has an active practice, it is the evidence of his or her ability and the
strength of support which will determine the decision.
Circuits, chambers and firms
Each application is considered on the established merits of the individual
alone. No account is taken of the interests of the applicant's circuit,
practice type, chambers or firm, in considering applications."
Annex B: 2003 Selection Process in England and Wales
Application
Applications are currently invited annually through an advertisement and
through the Departmental web site. The advertisement has for many years
usually appeared in early September, and the list of successful applicants
is published the following Maundy Thursday.
Consultation
Much of the Queen's Counsel exercise is conducted by means of written consultation.
Written views are automatically sought from the judiciary, specialist legal
associations and other senior practitioners. Applicants are now invited
to nominate up to six names from the list of automatic consultees who are
best placed to provide comments against the criteria. They are also requested
to nominate a further six consultees of their own choosing.
Meetings are held with the Heads of Supreme Court Divisions; the judges
in charge of the Commercial Court, the Administrative Court and the Technology
and Construction Court; the Presiding Judges; Family Division Liaison Judges;
Circuit Leaders and the Chairman and Vice-Chairman of the Bar Council. Meetings
are occasionally also held to clarify a consultee's views or, where a consultee
has consulted others, the degree of consensus.
Sift
Following the consultation period, Departmental officials conduct a sift
of all applicants, to establish how far the evidence demonstrates that they
meet the criteria for appointment to the required standard. All marks and
comments are given individual consideration. No single comment or mark can,
in itself, cause an application to fail.
The sift is now a three-stage process. First, Departmental officials working
independently of each other prepare a written assessment of the evidence.
The second stage consists of two panels, each comprising a senior official
and a lay member. The panels review the applications and classify them according
to the strength of the evidence that the applicant meets the criteria for
appointment. The third stage is moderation by Legal and Judicial Services
Group's most senior officials to ensure a consistent standard of decision
making and recording.
The results are presented to the Lord Chancellor in the form of a Long
List. This list is divided into categories relating to circuit or practice
type. It now summarises the evidence on every applicant who appears to meet
the criteria to the required standard, dividing them into four groups according
to the strength of the evidence. The Long List also includes the name of
any other applicant whose fees are in the upper quartile for their particular
practice type or circuit. The Lord Chancellor is provided with the detailed
comments received for each applicant who appears in the Long List. He is
provided with the names of, and the full comments received on, all ethnic
minority, female, and solicitor applicants and those who have a specialist
practice on provincial circuits. He also receives a separate note of those
not included in the Long List and a brief summary of the reasons. This material
enables the Lord Chancellor and those he consults to check the validity
of the decision to exclude any of the applicants in the above categories
from the Long List.
Appointment
The Lord Chancellor personally considers the Long List and additional detailed
material. He does not confine his consideration to the Long List alone and
bases his final recommendations on all the material available to him. Following
his initial consideration, he holds separate meetings to discuss the applications
with the Law Officers and the Heads of Supreme Court Divisions and their
senior judicial colleagues, who also receive copies of the same material.
The Lord Chancellor then decides which applicants to recommend to The Queen
for appointment.
There is no limit to the numbers of new Queen's Counsel who may be appointed
in a particular year, nor is there a quota of appointments to be filled.
The Lord Chancellor makes his recommendations for appointment on the basis
of the calibre of each individual applicant, as reflected in the views given
in that year's round. All applicants who fulfil the published criteria to
the necessary high standard will be recommended for appointment.
Feedback
Unsuccessful applicants are encouraged to discuss the outcome of their application
with a senior member of Legal and Judicial Services Group. Feedback is given
in confidence and usually by telephone. The aim of the feedback discussion
is to help applicants to understand why they were not appointed by reference
to the degree of support received and the tenor of the views obtained. They
are given a full account of the comments received, edited only to the extent
necessary to preserve the confidentiality of the source.
Complaints
The Department hopes to explore any issues of concern to the applicant during
the feedback process. If there remain unresolved problems, applicants are
encouraged to write to the Director General, Legal and Judicial Services
Group or the Lord Chancellor.
If the applicant remains dissatisfied with the way his or her application
has been considered, he or she may lodge a complaint with the Commissioner
for Judicial Appointments, who will investigate complaints of discrimination,
unfairness or maladministration in the way the procedures have been applied.
Attorney or Solicitor General
By convention, should someone who is not in Silk already be appointed as
Attorney or Solicitor General, he or she is immediately appointed as QC
outside of the usual annual round.
Annex C: QC System in Northern Ireland
The power of appointing Queen's Counsel in Northern Ireland is exercised
by The Queen acting on the recommendation of the Lord Chancellor who is,
in turn, advised by the Lord Chief Justice of Northern Ireland.
The procedure is:
- When, following consultation between the Lord Chancellor and the Lord
Chief Justice, it is determined that appointments as Queen's Counsel should
be made, the Lord Chief Justice issues a notice inviting counsel to apply.
The invitation is not issued on a fixed basis: the last two competitions
were held in 1999 and 2001, and the probable frequency is every two or
three years.
- Those who want to apply are sent an application form and guide on the
process. The criteria are set out. A cumulative period of not less than
10 years' practice at the Bar will ordinarily be required.
- Applications must be completed and returned to the Lord Chief Justice's
Office by a specified date. This Office is responsible for processing
the applications and organising the consultation process.
- Following the closing date for applications, the Lord Chief Justice
initiates a confidential process of consultation with all Supreme Court
judges, the Chairman of the Council of HM County Court judges, the Recorders
of Belfast and Londonderry, the Chairman of the Bar Council and the President
of the Law Society. Comments are sought on how the applicants meet the
criteria for appointment.
- Upon receipt of the consultees' comments, the Lord Chief Justice prepares
provisional recommendations outlining his assessment of those applicants
considered suitable for appointment as Queen's Counsel. This is forwarded
to the Lord Chancellor together with a synopsis of the consultees' comments
on the candidates. The Lord Chancellor and the Lord Chief Justice will,
if necessary, meet to discuss the Lord Chief Justice's provisional recommendations.
- Following consideration by the Lord Chancellor and the Lord Chief Justice
of the provisional recommendations, the Lord Chief Justice's Office notifies,
in confidence, those applicants whom the Lord Chief Justice is not minded
to include in his final recommendation for appointment. These candidates
are informed that they may request a confidential meeting with the Lord
Chief Justice to discuss their applications. This meeting provides applicants
with an opportunity to present any additional evidence which they feel
may be beneficial to their application.
- The Lord Chief Justice then prepares a final recommendation outlining
his assessment of those applicants considered suitable for appointment
and forwards it to the Lord Chancellor. The Lord Chancellor and the Lord
Chief Justice will, if necessary, meet to discuss this final recommendation.
- The Lord Chancellor then submits to The Queen a list of counsel recommended
for appointment. The Queen then decides whom to appoint. The instruments
of appointment and associated procedures of appointment are administered
by the Crown Office in Northern Ireland. Appointments are made by letters
patent and presented to the newly appointed QCs during a ceremony in the
Royal Courts of Justice, Belfast.
- A Commissioner for Judicial Appointments was appointed by the Lord Chancellor
in December 2001. His role extends to the Silk process and his function
is to audit the process and to deal with any complaints that arise.
Annex D: Summary of Position in Other Jurisdictions
Queen's Counsel or equivalent schemes in other jurisdictions
Scotland
The Lord Justice-General makes recommendations to the First Minister of
the Scottish Executive of persons for appointment as Queen's Counsel in
Scotland. The First Minister puts forward the names to The Queen for approval
of their appointment. (The Secretary of State for Scotland plays no part
in the process of appointment and nor does the Lord Chancellor.)
The process is:
- The Lord Justice-General invites applications from qualified advocates
and solicitor advocates in Scotland. This exercise is conducted once each
year.
- The Lord Justice-General consults the Lord Advocate, the Senators of
the College of Justice, the Dean of the Faculty of Advocates, and the
Law Society of Scotland.
- The Lord Justice-General submits a list of recommendations to the First
Minister. There is no merit order involved. All are equally recommended.
- There are no further meetings after that stage.
- The First Minister puts forward the list of names to The Queen for appointment.
There is no appointment ceremony in Scotland. A copy of the letters patent
is issued to each successful candidate.
Isle of Man & Channel Islands
The Law Officers of the Crown in the Channel Islands (the Attorneys and
Solicitors General of Jersey and Guernsey) and the Attorney General of the
Isle of Man (which does not have a Solicitor General) are given the rank
of QC, learned in the law of their respective jurisdictions, on appointment.
This is done by warrant of the Lord Chancellor in his capacity as the Privy
Counsellor with particular responsibility for the Crown Dependencies.
Overseas Territories
Appointments to the rank of Queen's Counsel are made in the Overseas Territories,
but not necessarily on an annual basis. Since the year 2000, around 12 Queen's
Counsel have been appointed. Appointments are made by the Foreign Secretary
with notification of the award being sent from the Governor of the relevant
Territory.
Applications for these QC appointments are considered on the basis of guidelines
agreed in 1986 between the Foreign and Commonwealth Office and the then
Lord Chancellor's Department.
The guidelines state:
- The rank of Queen's Counsel should be made available to a limited number
of senior practitioners in the territories regardless of whether they
are advocates or in fact carry out the functions which in England would
be carried out by solicitors, and that no undertaking be required of such
persons similar to the one now required.
- Candidates for the rank of Queen's Counsel should have a minimum of
15 years experience since call or admission.
- Candidates should be of the highest standard and professional reputation
and integrity.
- Candidates should be recognised as being of eminent stature in the practice
of law.
- Numbers of Queen's Counsel should be restricted to approximately 10%
of the number of those members of the practising Bar.
- Applications for appointment to the rank of Queen's Counsel must be
supported by the Chief Justice and Governor.
- The prior approval of the Secretary of State for Foreign and Commonwealth
Affairs is required for any appointment to the rank of Queen's Counsel.
Canada (legal system based on English common law)
In all provinces, a committee reviews eligibility of QC candidates and determines
a list of recommended appointments. In most provinces the committees comprise
representation from the government, the judiciary and the Law Society. The
Minister of Justice is not bound by the committee's recommendations and
can appoint whomever he/she wants.
New Zealand (legal system based on English common
law)
Appointments are currently made by the Governor-General, on the advice of
the Attorney-General and Chief Justice.
Following a period of consultation on the QC system, the New Zealand Government
approved in March 2002:
- the replacement of the title Queen's Counsel with the title Special
Counsel (SC),
- that lawyers within law firms should be eligible for the title of SC
(rather than just sole practitioners),
- that provision for both these changes would be made in the Law Practitioners
and Conveyancers Bill.
Australia (legal system based on English common law)
The regulation of Queen's Counsel or Senior Counsel is handled at state
and territory level within Australia.
In the Northern Territory, South Australia, Tasmania, Victoria and Western
Australia, appointments are made as Queen's Counsel or as Senior Counsel.
In the Northern Territory, Queen's Counsel are appointed by the Administrator
of the Northern Territory of Australia, on recommendations from the Chief
Justice and the Attorney General. In South Australia, Queen's Counsel are
appointed by the Governor in Council on the recommendation of the Chief
Justice. In Tasmania, Senior Counsel are appointed by the Chief Justice
of the Supreme Court of Tasmania. In Victoria, Senior Counsel are appointed
by the Governor in Council on the recommendation of the Attorney General.
In Western Australia, Senior Counsel are appointed by the Chief Justice
of Western Australia, having the support of the Supreme Court. In both the
Australian Capital Territory and New South Wales (NSW), although the state
government retains the right to appoint Queen's Counsel, it has decided
to make no further use of it. Legislation has been passed to allow the Law
Society and Bar Association to appoint Senior Counsel in the way they see
fit. In NSW, appointments to Senior Counsel are made by the President of
the NSW Bar Association.
Nigeria (legal system based on English common law,
Islamic Shariah law (only in some northern states) and traditional law)
Before independence, The Queen appointed qualified legal practitioners to
the rank of Queen's Counsel. The rank was abolished in 1964 after Nigeria
became a republic, but a replacement was considered necessary, and the grade
of Senior Advocate of Nigeria was established by the Legal Practitioners
Act 1975.
The Legal Practitioners Privileges Committee selects Senior Advocates of
Nigeria. It consists of the Chief Justice of the Federation, who is the
chairman, the Attorney General of the Federation, one Justice of the Supreme
Court, the President of the Court of Appeal, five Chief Judges of the states,
the Chief Judge of the Federal High Court and five legal practitioners who
are themselves Senior Advocates of Nigeria.
Barbados (legal system based on English common law)
In Barbados, the rank of Queen's Counsel (which was suspended between 1975
and 1980) is stated to be the "official recognition of seniority coupled
with high personal standing and professional distinction in the Legal profession".
Applicants must be an attorney-at-law of at least 10 years' standing and
of irreproachable conduct and professional eminence. Applicants may either
write directly to the Chief Justice or be nominated by a Queen's Counsel.
The Chief Justice then consults the other judges of the Supreme Court, the
Barbados Bar Association and Attorney-General. The Chief Justice forwards
his recommendations to the Prime Minister, who advises the Governor-General
to make the appointment.
South Africa (legal system based on Roman-Dutch law
and English common law)
Screening and selection for Silks is done by the Bar Council. In 1992 the
Council published Criteria and procedures in regard to granting of Silk.
The application process is:
- The Secretary notifies members that applications are to be received
by the Chairman by 15 April of the year in question.
- Members are obliged to notify Chairman of their intentions.
- The Chairman may, after consulting senior members of the Bar Council
(the Committee of Silks), invite members to submit an application.
- The Chairman invites applicants to substantiate their application in
writing and if they wish to do so to nominate a Silk to whom the Chairman
can refer in confidence regarding the application.
- The Chairman may refuse an application at this stage and not allow an
application to go forward for further consideration.
- The Chairman may, if s/he deems appropriate, grant an applicant the
opportunity to deal with any adverse matters.
- The Chairman discloses in confidence the list of applicants to the Bar
Council.
- Juniors can notify the Chairman (for information to the Committee for
Silks) of relevant facts regarding the applicants.
- The Committee for Silks considers if the application should be recommended.
- The Chairman writes to unsuccessful candidates.
- The Chairman alone advises those who request it the reason why they
were unsuccessful.
- The names of successful candidates are conveyed by the Chairman to the
Judge-President of the High Court.
- The Judge-President adds his or her endorsement to the Bar Council's
recommendations, but may withhold endorsement if s/he disapproves.
- The Judge-President sends the name of successful candidates to the Ministry
of Justice.
- The Ministry of Justice adds its endorsement and puts the list before
the Cabinet for formal approval.
- Silk is then formally conferred by the State President.
Hong Kong (legal system based on English common law)
Previously Queen's Counsel appointments were made by the Governor on the
recommendation of the Chief Justice. Since 1997, the appointments (now called
Senior Counsel) have been made under statute. The statute lays down the
eligibility requirements and confers on the Chief Justice power to make
the appointments after consultation with the Chairman of the Bar Council
and the President of the Law Society.
Other countries
In some countries such as the United States of America (legal system based
on English common law), the legal profession has no mark of distinction
or quality comparable to the QC mark.
This also appears to be the case in countries where the legal system is
based on civil law as opposed to common law. For example, France, Germany
and Sweden all state they have no QC equivalent in their legal professions.
Annex E: Summary of Quality Mark Approach taken by Other Professions
Appraisal and revalidation in the medical profession
The Department of Health is introducing a corporate appraisal system for
all NHS staff in England [Endnote
36]as part of the Government's commitment to delivering the quality
agenda. Annual appraisal for NHS consultants was launched in April 2001
and for GPs in April 2002. A joint appraisal system for clinical academics
with honorary NHS contracts was launched in August 2002. Work is under way
to roll out schemes for other groups of NHS doctors, including doctors in
training, public health doctors, and locum doctors. Appraisal is a professional
process to help doctors consolidate and improve on good performance, aiming
towards excellence. Appraisal for doctors will be carried out by another
doctor on the medical register. The Chief Executive of NHS Trusts is accountable
for the appraisal process. The appraisal system is constructed around the
General Medical Council's (GMC) publication Good
Medical Practice, so that the same evidence can be used for both appraisal
and revalidation of the GMC licence to practise. Doctors working outside
the NHS can also choose an independent route to revalidation which involves
submitting evidence that they have kept their practice up-to-date directly
to the GMC.
The standards for doctors' clinical work are set by the individual Royal
Colleges who also set the exams in respect of their particular specialty,
for example, surgeons and psychiatrists.
The GMC is introducing licences to practise for doctors which will be subject
to revalidation every 5 years, based on satisfactory evidence that the doctor
has kept up to date and is fit to practise. From 2004 doctors without a
licence to practise will not be allowed to treat patients or prescribe for
them.
Continuing Professional Development in the NHS
Continuing Professional Development (CPD) is in support of the delivery
of high quality care and clinical governance. It is a life long learning
scheme for all individuals and teams which meets the needs of patients,
delivers the health outcomes and healthcare priorities of the NHS, and enables
professionals to expand and fulfil their potential. Health professionals
look to the clinical guidelines produced by the National Institute for Clinical
Effectiveness (NICE) as a focus for CPD activities and ensure that they
align CPD activities with the audit methodologies linked to NICE clinical
guidelines and standards.
Basic Skills Agency (Department for Education and
Skills)
The Primary and Secondary Quality Mark of the Basic Skills Agency (BSA)
is based on a close partnership with local education authorities (LEAs)
and schools. The assessment and recommendation for all Primary Quality Mark
and some Secondary Quality Mark awards is the responsibility of LEAs. The
BSA role is to make sure that the assessments carried out are consistent
between and across LEAs throughout England and Wales.
There are three quality marks:
- A Quality Mark for Primary Schools
- A Quality Mark for Secondary Schools
- A Quality Mark for Post-16 Basic Skills Programmes (Wales only)
The Primary Quality Mark is awarded for 3 years (during this time regular
monitoring visits from the LEA
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