THE title of Queen’s Counsel has from time immemorial been awarded to barristers-at-law in England and throughout the British Commonwealth in recognition of their intellectual and advocacy skills through the practice of law at the Bar. All appointments were made by the reigning sovereign and all awardees were entitled to have the designation QC or KC behind their name, (depending on whether the relevant sovereign was a man or woman).

Over the last quarter century or so, criticisms of the process of selection and appointment have become strident, particularly among members of the legal profession throughout the Commonwealth. In the United Kingdom, Queen’s Counsel appointments were suspended in 2003, and it was widely expected that the ancient system would be suspended or abolished to make way for a new process underlined by transparency, fairness and evidence.

In Jamaica, there has always been talk of the need to change the system of appointments of Queen’s Counsel, although such talk has mostly been subdued and confined to members of the legal profession. Since Independence in 1962, several practitioners have openly questioned the relevance of the title, notwithstanding the fact that the Privy Council continues to be our highest law court and Queen Elizabeth II continues to be our head of state. This constitutional anachronism has given rise to some debate among interested stakeholders and members of civil society, especially in view of the fact that the process of appointment and designation has been severely curtailed in several of our sister Commonwealth countries, including the United Kingdom.

For example, in Scotland it is now permissible for solicitors with rights of audience in The High Court of Judiciary to apply for appointment. A solicitor advocate who is so appointed is currently designated “Queen’s Counsel, Solicitor Advocate”. In Northern Ireland, the title of QC remains, but the Bar Council has agreed (in the Elliot Report) that the royal oath should be dropped and replaced by a more neutral statement. It suggested that instead of declaring their services to Queen Elizabeth, barristers should “sincerely promise and declare that I will well and truly serve all whom I may lawfully be called to serve in the office of one of Her Majesty’s Counsel, learned in the Law according to the best of my skill and understanding”.

In Nigeria the title QC has been replaced with the new title of Senior Advocate of Nigeria. Appointments are restricted to fewer than 30 lawyers annually, and are made by the chief justice of Nigeria on the recommendation of a Legal Practitioner Privileges Committee.

In Australia, most state governments have replaced the title QC with Senior Counsel. The Supreme Court of Western Australia replaced the Office of Queen’s Counsel with the Office of Senior Counsel on September 24, 2001. The Supreme Court of Victoria started the appointment of Senior Counsel as of September 12, 2007. The Supreme Court of Queensland abolished the title of Queen’s Counsel in 1993. In the other Australian states, Queen’s Counsels appointed before the change may retain the title. In Australia, it is only at the federal level and in the Northern Territory that the practice of appointing Queen’s Counsels continues.

New Zealand abolished the title in 2006 and replaced it with Senior Counsel.

In Canada, several provinces continue the practice of appointing Queen’s Counsels. However, Ontario ceased the practice in 1985 and the federal government did likewise in 1993. No substitute designations have been made, apparently on the grounds that the appointments are a form of political patronage and are at best discontinued.

Closer to home, Belize, Trinidad and Tobago and Guyana have all changed the title from Queen’s Counsel to State Counsel (SC) and with the advent of the Caribbean Court of Justice, the other Commonwealth Caribbean territories may soon follow suit.

In England and Wales recommendations for the award of Queen’s Counsel are made by a Queen’s Counsel Selection Panel which is established by The Bar Council and The Law Society. However, the panel operates independently of either body. The panel is chaired by a lay member but comprises senior judges, barristers and solicitors.

Applicants for the award of Queen’s Counsel must meet the competencies, some of which are:

(1) Understanding and using the law.

“Has expert, up to date legal knowledge and uses it accurately and relevantly, and becomes familiar with new areas of law quickly and reliably”.

(2) Excels at oral and written advocacy.

“Develops and advances client’s case to secure the best outcome for the client by gaining a rapid, incisive overview of complex material, identifying the best course of action, communicating the case persuasively, and rapidly assimilating the implications of new evidence and argument and responding appropriately.”

Examples (preparation)

(a) Gains an accurate understanding of complex and voluminous case material.

(b) Appreciates aspects of the case that are particularly important, sensitive or difficult and appreciates the relative importance of each item of evidence.

(c) Prepares thoroughly for the case by identifying the best arguments to pursue and preparing alternative strategies.

(d) Deals responsibly with difficult points of case management and disclosure.

(e) Anticipates points that will challenge an argument.

Examples (court and/or dispute resolution)

(a) Presents facts and structures arguments in a coherent, balanced and focused manner.

(b) Writes arguments accurately, coherently and simply, and in an accessible style.

(c) Assimilates new information and arguments rapidly and accurately.

(d) Immediately sees implications of answers by witness and responds appropriately.

(e) Accurately sees the point of questions from the tribunal and answers effectively.

(f) Gives priority to non-court resolution throughout the case where appropriate, identifies possible bases for settlement and takes effective action.

(g) Prepared and able to change tack or to persist, as appropriate.

(h) Deals effectively with points which challenge an argument.

(3) Has a good working relationship with clients, (lay and professional), judges and team members.

Example

(a) Behaves in a consistent and open way in all professional dealings.

(b) Advances arguments in a way that reflects appropriate consideration of perspective of everyone involved in the case.

(c) Helps the client focus on relevant points and is candid with the client.

(d) Explains law and court procedures to client and ensures the client understands and can decide the best action.

(e) Is prepared to advance an argument that might not be popular and to stand up to the judge.

(f) Responds to the needs and circumstances of client (including client’s means and importance of case to client and bearing in mind duty to legal aid) and advises client accordingly.

(i) Accepts ultimate responsibility for case when leading the team.

(j) Motivates, listens to and works with other members of own team.

(k) Aware of own limitations and seeks to ensure that they are compensated for by others in team.

(l) Able to take key decisions with authority and after listening to views.

(m) Identifies priorities and allocates tasks and roles when leading the team.

(4) Integrity

Is honest and straightforward in professional dealings with the court and all parties.

Examples

(a) Does not mislead, conceal or create a false impression.

(b) Honours professional codes of conduct.

(c) Where appropriate, refers to authorities adverse to the client’s case.

(d) Always behaves so as to command the confidence of the tribunal and others involved in the case, as well as client.

(e) Acts in professional life in such a way as to maintain the high reputation of advocates and Queen’s Counsel.

We are aware of the fact that each country or jurisdiction will wish to develop its own process. We therefore make the following recommendations with a view to replacing the current system with a new process, namely:

(1) The establishment of an Independent Selection Panel similar to what obtains in England and Wales. The panel shall consist of the following members:

(a) A retired judge of appeal

(b) A retired puisne judge

(c) A nominee of the General Legal Council

(d) A nominee from each of the presently established and active Bar Associations and the Advocates Association.

(e) The senior justice of the peace nominee of the custos (a lay person) from the parish where the applicant lives and/or works.

The members with the assistance of the General Legal Council shall establish rules of procedure and elect their chairperson.

All recommendations for appointment shall be made to the attorney general in the capacity as head of the bar who shall, within a specific time after receiving the recommendation, advise the prime minister or governor general of the recommendation. The prime minister or governor general shall (also within a specific time) make the awards.

All unsuccessful applicants must, if requested, be given an interview with the panel or a subcommittee thereof for an explanation of the reasons given for their failure to qualify. Unsuccessful applicants should also be given the opportunity to reapply.

(2) The title of the award should be changed from Queen’s Counsel to Senior Counsel or State Counsel.

(3) All applicants should have a period of at least 20 years of continuous practice in their areas of expertise.

(4) Counsel who has already received the award should be given the option to keep same or surrender it in exchange for the new award.

(5) The current system of awards should continue, pending a thorough review of the process with a view to changing same within six months.

The above is an edited version of a paper prepared and submitted by the Cornwall Bar Association to the prime minister and the attorney general at the request of the prime minister. The CBA’s committee comprised Clayton A Morgan, chairman; Michael Erskine, vice president, and Fredrick Hamaty, QC.