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Queen’s Counsel: A rank worth retaining?

Queen’s Counsel: A rank worth retaining?

Posted by zenaira-khan | 22 April 2015

Whether or not the QC title is still relevant is a discussion that the bar simply seems unable to shake off. When one objection to the system appears to have been adequately handled another one often raises its head.

Most recently the relevance of the QC title has been raised in Sydney. It comes amongst a national push to reintroduce the title of QC. Currently the title SC (Senior Counsel) is awarded to higher barristers but it has been suggested that SC should have the option to apply for QC title as is already the case in Queensland and Victoria.

The suggestion has been met with much opposition, SC Bruce McClintock argued ‘’in what sense are QCs…counsel of, to or for Elizabeth II?  We are actually senior counsel.’’ The issue here is centred on whether a link to the Queen is appropriate or not rather than on the relevance of the title in general, but the link to the Queen is just one of several concerns that are frequently raised about the title in England in Wales.

The link to the Queen has been challenged as archaic and outdated in England with concerns extending to the necessity of the title as a whole. A key concern about the rank of Queen’s Counsel has been its effect on competition. In 2001 the Office of Fair Trading (OFT) investigated the system and found that it offered the consumer “questionable value” noting the significant increase of barrister’s earnings upon achieving silk. Since the OFT’s investigation the system has been completely redesigned but there are still those that argue differentiating between those with and without the title stifles competition.

In 2006 the then president of the Law Society, Fiona Woolf, stated that she was “not sure” that she would “perpetuate a QC system”. Rather she suggested a “route of specialist accreditation – for example, having specialist family or energy lawyers, etc.” A complaint of the QC system is that even though it now recognises solicitors and solicitors occasionally achieve the rank QC this is still a very rare occurrence. Woolf and others argue recognising specialists by practice area across both aspects of the legal profession would help to identify experts and accord those working in more niche areas due recognition.

One of the most notable objections relates to the makeup of current silks. While the representation of women and ethnic minorities amongst silks has improved in recent years there are still concerns that both groups are not achieving the representation they deserve at QC level.

With a host of concerns and growing criticisms towards the QC rank in the late 90s the system was under pressure to change. Much of the dissatisfaction was addressed in the 2003 reforms which resulted in an entirely new system.

Prior to the 2003 reforms there was still an application form and a structured procedure but the system was criticised for being too secretive and subject to unfair influence from biased referees. The changes ensured that the Lord Chancellor was no longer responsible for the appointment of QCs and implemented an objective approach with an independent selection panel including non-lawyers.

The reforms to the system over a decade ago have done much to quieten the dissatisfaction in the title which looked to be leading at one point to its complete abolition. For many it is still an indication of excellence and a rank to aspire to. To read more about the new system you can read our interview with Tim Dutton QC of Fountain Court Chambers who was part of the reform process where we talk about the changes, the challenges and the remaining relevance of the QC title.

For other insights into life at the Bar you may be interested in reading our two-part series on cross-jurisdictional study and practice. Read Part 1 and Part 2 here.

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