Queen's Counsel

An archaic designation of a barrister, phased out in most jurisdiction, indicating of its title holder faithfulness to the Crown, but more recently, contribution to the profession of lawyers.

An archaic designation of a barrister, phased-out in most jurisdictions, indicating of the title holder allegiance to the Crown, but more recently, contribution to the professional activity of lawyers or to the law at large.

In 1594, Queen Elizabeth I exclusively reserved, as her legal adviser, Francis Bacon (1561-1626; pictured), he becoming the first Queen's Counsel.

When the Queen died and was replaced by James I, he increased Bacon’s authority naming him a roving barrister and solicitor to represent the Crown; “our counsellor at law” with “precedence and audience in our courts or elsewhere”.

They were and are called “King’s Counsel” (KC) during the tenure of a male monarch and “Queen’s Counsel” (QC) during the tenure of a female monarch.

Bacon was given an annual fee of £40 and he intervened actively in state trials and other Crown business.

When Bacon was promoted to Solicitor General, a replacement was named in 1607: Henry Montagu, a position he held for four years.

It was not then until, starting in 1626, that Charles I appointed nine King’s Counsel (QC). By the mid-1600s, the appointment had become more of a royal reward as it meant that the lawyer can instantly and dramatically increase its fees.

In J. H. Baker’s book, The Common Law Tradition: Lawyers, Books and the Law published in 2000 by the Hambledon Press of London, England, it is suggested that:

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

King’s Counsel (KC) sat within the precincts of the Court room usually reserved for the judge, represented by a bar, while all other lawyers sat beyond the bar just in front of the general public.

After being appointed Q.C., the lawyer may use the initials "Q.C." following his or her name and wear distinct silk robes in Curt (and are aptly called “silks”).

King Charles II appointed 32 king’s counsel and James II, 11 as the appointment evolved into a sure step to appointment to the Court as a judge. What better than to have a judge, who owes his personal fortune to the King, hearing cases involving the Crown?

By this time, the political characteristic of the appointment was apparent; most were members of Parliament where royals were anxious to line up support.

In 1688, a 32-year old barrister was appointed, Francis North and by 1835, there were 53 KCs in England.

William Blackstone, in Commentaries on the Law of England, remarked that “they must not be employed in any cause against the Crown, without special license”, which required the payment of a fee.

In England, the Government appoints Queen’s Counsel, both provincial and federal, although most have ceased the practice recognizing that they are not always doled out based not on merit or competence, tenure or any transparent selection process, but rather as political reward or to reflect not contribution to the law but, rather, contribution to the professional associations of lawyers. Any outspoken lawyer, having criticized the Government or his bar, need not apply.

As recently as November 8, 2007, New Brunswick announced the appointments of 11 QCs; one of which was the former law partner of the Minister of Justice, and another, the minister of health!

At the same time, the designation foments elitism and glass ceilings even within the sacrosanct halls of justice. Quebec, in 1976, Ontario, in 1985, and, finally, the federal government wisely stopped the practise altogether. Other Canadian provinces continue the process.

The words of Justice Leonards in Brownlow v Egherton, 1853, ring loud although, one has to note that he is from a jurisdiction, England, unapologetic in the dispensation of peerage, honour and title based only on birthright:

"Honours ought to come from merit, and from merit alone."

In 2003, the British government suspended the practise of appointing QCs for a year and then started it up again but, at least, deferred the appointment process to an independent body (qcapplications.org.uk). It is difficult to imagine how any system can rid itself of the pervasive perception that it is an “old boy’s club” with these types of secret appointments.

Many other jurisdictions continue the appointments by simply replacing the reference to the Queen by the designation of “senior counsel” (such as Australia).

Within those jurisdictions that continue the QC appointment practise, no similar government-sanctioned designation is available to other professions such as doctors, engineers or accountants.

REFERENCES:

• Brownlow v Egerton (1853) LJ Rep (NS) 415