The Lord Chancellor, Department for Constitutional Affairs
Constitutional reform: the future of Queen's Counsel.
QC's - The consultation paper.
The Consultation Paper asks whether it is nght for the Government to be the awarding
authonty for distinction in what is essentially a private profession in doing so it begs a
number of important questions and overlooks some key factors. I am concerned that the
English legal culture would be fundamentally and detrimentally altered, the administration of
justice would become more complex, slow and expensive; and public faith in the complete
impartiality and equality of arms before the law would be seriously undermined should the
rank be abolished.
A judicial, not a government appointment.
It is important to note that the awarding authonty in the case of QCs is not the government,
but the Lord Chancellor acting in his capacity as head of the judiciary It is widely supposed
that in exercising this authority, the Lord Chancellor has no duty to consult his cabinet
colleagues or indeed the Prime Minister as would be the case in the discharge of a
governmental function. Indeed, past Lord Chancellors have given the impression that their
recommendations to the Queen took no account of political factors, as would have been the
case if they were acting as a member ofthe government for the day. In acting as head of the
judiciary, the Lord Chancellor is performing a state function, not a government [ie/
executive] function . He is serving the cause of the administration ofjustice, not the political
aims of the party to which he may belong . The government, quite simply, is not involved m
the appointment of QCs.
Barristers are quasi-public servants - QC is a quasi-judicial rank
Although the profession of barrister is on the surface a pnvate profession, it carries with it a
number ofpublic duties unlike those of any other profession. The barrister is an essential
part of the system in the administration ofjustice. As this paper argues below, the barrister's
pnme duty is to the court, and although they have a duty of care to their client, this is
subordinate to their obligation to uphold the principles ofjustice . While of course other
professions have a duty not to break the law m the interests oftheir clients, none has an
unequivocal duty to a third party, [in the case ofhamsters, to the Court] which overrides a
duty to the client. This duty to the court puts the barrister in the position of a quasi-public
servant, and justifies the state, in the widest sense of the term, being involved in the
appointment of QCs and in defining the cnteria which determine whether candidates qualify
for this quasi-judicial role . If the state were not the arbiter of what qualities a QC should
have, there could be no assurance that the authority which replaced it would have the same
requirements .
While tlus argument would seem to support the case that the state ought to oversee the
appointment of all barristers, not just QCs, to do so m the present framework is unnecessary
Bamsters may be called to the Bar by their Inn of Court, but the ideal posited to them in their
formative years is that QCs are selected for their all-round qualities including their integrity
and service to the Bench. The existence of this ideal, which under the present system is
shaped by the state, acts as a powerful template on which young barristers are able to mould
their own behaviour and practice .
The QC - the unwritten role .
QC, is not merely a professional rank or title or kite mark of quality, although it is all those
things, it also denotes a quasi-judicial role which lies at the centre of the Rule of Law in the
English legal system.
The QC's role in the judicial system is, like the British constitution itself, not set out m a
single document but has evolved over centuries through practice, convention and statute. The
QC is referred to in some statutes, is relied upon in many common legal and public practices,
is constrained by codes of conduct, depended upon by tribunals, referred to m individual
contracts, the independent arbitrator designated m disputes and has domestic and
international recognition as a Hall mark of integrity and quality. Even so, the QC has a more
important role than all of these and from which these roles depend and are derived . This role
may be loosely described as being `quasi-judicial' .
The QC is appointed by the head of the judiciary, on the advice of (primarily) the judges,
works within the judicial system, cannot easily be removed (and is thus `fearless' like
judges), fulfils judicial functions (Mental Health Review Tribunals, enquiries etc.) has duties
to the court over and above those to their clients, is depended on by the state (I'll and
disclosure etc.), is relied upon by the judiciary for the smooth operation of the machinery of
justice and is trusted, inter parte, to have absolute integrity Many ofthese practices and
attributes are taken for granted, few are codified and it is often only upon their removal that
the full purpose and significance of them is belatedly recognised . Even an apparently simple
change, such as the removal of the title `Lord Chancellor', had unforeseen consequences
In a way peculiar to the British system. the QC has evolved to become the spine which links
the bench to the court and the court to the public . Removing the rank of QC is not in anyway
similar to removing a knighthood or peerage . The QC plays an integral part m our legal
system .
Private advocate and public servant
The QC's role has grown into a delicately balanced amalgam of private advocate and public
servant providing control of quality, integrity and form within our judicial system without, at
the same time, removing the advocates' independence . It is a peculiarly British blend of
compromise and contradiction between outright, and potentially destructive independence for
the highest level of advocate, and straightforward state control and appointment . The QC
works within and for the system whilst also representing the client . Such a position is not
only unique to the English legal system but lies at its heart and is not easily reinvented. This
dual role provides significant benefits to the English judicial process
The most beneficial result ofthis development is that the state can control the selection and
quality of the most highly respected advocates while the public can rely upon their integrity,
ability and independence . Neither wealth, class, race, sex nor random market forces are left
to select the system's most senior advocates and because ofthis both the state and the general
public are willing to invest their trust in the system . The QC thus appointed is in fear and
favour of no-one but the client whilst, at the same time, working within, and not against, the
system . Few, if any, question or doubt the integrity of QCs and few selected, if any, have
ever soiled it This, ofitself, says much for the efficient and thorough selection process, a
process inimitable by the commercial sector .
QCs, besides their obvious legal expertise, are considered to be rational, methodical,
thorough and objective. They are perceived to have a collective interest in the pursuit of
justice and to be public spirited and civic minded . In short, their integrity is unchallenged
and their independence beyond doubt. It is for reasons such as these that QCs are called upon
for public duties often involving conflicts between and within organs of government and
where the interests of government might clash with sections of the community. It is at such
delicate interfaces where the glue of democracy is at its least adhesive that a truly
independent professional is most useful This function precisely replicates, indeed mirrors,
the judicial process.
QCs are relied upon where it is essential that the outcome of such disputes and investigations
are seen to be fair and just by society. Such a beneficial outcome would be less likely should
the most senior advocates be selected and defined solely by their commercial success.
Questions would be asked about the selection process Was the advocate bending his will for
future public contracts? Was the advocate the highest eamer - and thus `the best'? Did the
government instruct biased counsel? Was the cheapest, rather than the most able advocate
selected? If such were the position, the litigants would feel disadvantaged by virtue of their
purse and public faith and support m and for the system would suffer .
Given the reliance placed by governments upon the independence, integrity, skill and
authority of QC's in public inquiries it is most surprising that the importance ofthe public
function has been missed. One cannot easily imagine a senior partner from a commercial
firm being readily accepted by the public as a fair inquisitor . A similar situation prevails
within the judicial system itself.
The quasi-judicial role within the judicial system.
The QC is far more than a mere rank within a profession It is an appointment which
endorses the barristers' existing commitment to the administration ofjustice As such, the
rank of QC is the standard for conduct and propriety throughout the entire bar . It is clearly in
the public interest that the cohesion created and functions served by the QC are not
unwittingly dispensed with .
From induction, the Bar student learns the importance of the code of conduct and the junior
bar relies upon it to underscore their approach to their work . The gloss on the code of
conduct and the height of achievement is personified by the rank of QC. The QC sets the
standard for the conduct of the entire bar. If this standard were removed, the measure of
achievement would inevitably be replaced by more simple measures of success. Inevitably
these would be promotional and pecuniary. Self promotion, grandstanding, inflexibility for
the sole benefit ofthe client and against the interests of the court would be inevitable. Such
an outcome is unlikely to be m the public interest but likely to appeal to the superficial
interest of the lay client and perhaps, the hamster reliant solely upon self-promotion, as the
only means and measure of career advancement .
QC - learned in the law .
The barrister is more likely to have the most current appreciation ofthe law within their
particular speciality than the judge who may try a wide variety of cases. This position is even
more pronounced at the top of the profession where the QC handles the most complex,
controversial and delicate of cases . A QC's advice on process, practice and law is widely
relied upon by the judiciary. (Constitutional reform : the future of Queen's Counsel, page 13
para 24). The QC's specialist knowledge, ability and demeanour ensures the smooth working
of the system . At the frontiers of law there are daily changes in interpretation as the unique
circumstances of individual cases are considered and ruled upon by the judiciary. These are
not mere nuances but changes m case or common law. There is no one better placed within
the profession than the practising QC to be aware of such changes within their special field of
work . While medical consultants might keep abreast of the latest published papers, for the
QC, many ofthe advanced and legal interpretations are not published and those which are
frequently published late. The QC, specialising at the leading edge of complex cases is
uniquely able to advise the bench and be trusted and relied upon when so doing. The law is a
living organism growing daily and is unique m this regard .
It is this expertise in the law which is so valued by the solicitor who may deal with few
contentious cases m the same area. It would seem that some solicitor partnerships would like
to claim such expertise and this would be far easier for them to do should the learned QC
disappear, but this is no justification for such a move. Solicitors, even the largest, would be
unable to employ expert lawyers m all the leading fields and much specialist expertise would
be lost. Those of smaller wallets or on legal assistance would be barred from the best advice .
Such a move would inevitably result in a poorer legal system, worse advice and increased
costs as the supply of experts was reduced to those employed by a few of the larger solicitors
partnerships who would press home the advantage of their monopoly .
Should the judges be reliant upon their own resources and be forced to check and seek out the
latest authorities because the advocate played no such supporting role, the current efficiencies
and smooth running of the system would be lost. It would seem highly probable that the
judicial system would become much slower and more inefficient should this interdependence
be lost. The QC is an important part of the machinery of justice (Constitutional reform : the
future of Queen's Counsel, page 19, para 39)
The rank of QC is essentially a mark of advocacy. However, even those barristers who spend
the bulk oftheir working time m an advisory capacity are primarily employed because some
civil and commercial matters do go to court. Their duties are performed in an advisory
capacity but are crafted and shaded by the prospect of the court process. [Consider duties of
disclosure and the like.] . The barrister's advice, and more so that of the QC, is regarded as
both authoritative and up to date -authoritative because the QC is a specialist and up to date
because his knowledge rests on his involvement in current case law .
QC - the selection process .
It is hard to imagine a more thorough, independent and fair system than that currently run by
the Lord Chancellor's Department . There is no other profession m the world of which we are
aware which consults all those who have had experience of the candidates abilities stretching
over fifteen or twenty years. It is the very rigour and thoroughness of the process which
gives the judiciary confidence m those who are advanced within the profession . Some critics
of the system suggest partiality may occur m the final selection process but such objections
may be easily dealt with by relatively small administrative changes, most of which have been
well aired elsewhere.
The selection process, (Constitutional reform : the future of Queen's Counsel, page 35 para
80) whilst managed by the Lord Chancellor's Department is in fact dependant upon the
judges and practitioners within the court system . The consultees comprise the most senior
members of the judiciary . Those responsible for QC selection are the very individuals
running the legal system and they select those who best assist them m the administration of
justice for advancement. The selecting authority shows no fear or favour in regard to sex,
race, colour creed or class. It is right and proper that the state should contribute to the cost of
the selection process from which it directly benefits and more so for those applicants on
lower incomes.
Should there be any room for doubt that the rank of QC is more than a mere promotional
rank, the form, content and manner of QC's oath defines and clarifies the role . The oath
places QC's m a capacity akin to that of a Recorder, Privy Councillor or MP and it cannot be
said that such a person acts m a private professional capacity .
QCs - the pop charts .
Much is made of the various commercial lists and rankings within a variety of diverse
journals as an alternative to a judicially controlled elevation or kite mark However,
commercial ranking systems suffer from a variety ofdeficiencies . They are necessarily a
random market appraisal taken from a small pool of consultees and lack statistical
thoroughness or agreed criteria. They are not in any position to assess the QC's quasi
judicial contributions to the legal process. They will inevitably reflect `winning' as the
prime consideration, are unable properly to assess those who prosecute as well as defend, will
miss those senior QC's involved in long cases from their coverage and are prone to a lack of
balance as the tendency will be for the appraiser to contact the same, more helpful and larger
firms, for such appraisals . Such commercial snap-shots have a very limited use and can in no
way replace a thorough appraisal system for selecting the top echelons of the bar . A string of
high profile case wins is not necessarily indicative of more than one good source ofwork and
says nothing about the range and depth of the advocate's skills . The ultimate measure ofthe
value of a barrister worthy of elevation to the rank of QC must continue to be decided by the
judiciary after long and continuous monitoring over years of service not as the result of
success or notoriety achieved m a particular case. It cannot be in the public interest that
senior counsel are marked out in any other way than by lengthy judicial appraisal .
QC - value and price.
One of the greatest considerations today is price. The cost to the consumer, the cost to the
taxpayer, these are often confused with value to society. Critics of the present system argue
that QCs seek to retain an antiquated Rolls Royce system which we, as taxpayers, can no
longer afford . However, we do not seek to rebut the argument for ending the QC system on
the grounds of value and quality, although we obviously could, we oppose it on the grounds
of cost.
The QC system is the most cost effective way of providing the consumer with an expert field
of top quality, specialist advocates at the cheapest price. As has been argued above, even the
largest solicitor's practice cannot afford to retain up- to- the- minute experts m current law
which is why they consult QC's. QCs have considerably lower overheads than generalist
solicitors forced to retain a physical presence m expensive city and high street locations .
Certainly, they may employ experts m bread-and-butter fields m the more repetitive areas of
work, but they will not and cannot carry the scarce-used specialist . Such expertise will either
wither away or be priced above the reach of the ordinary citizen . Consulting a specialist
solicitor based advocate is necessarily more expensive than consulting a barrister. At present,
such expertise is available to all because the specialist is not exclusively employed within a
small number of large private firms . A select pool of experts, accessible to all, is clearly
cheaper and in the public interest. The QC kite mark enables the consumer to be certain that
the expert is exactly that and not some puff or a vain boast by a generalist hoping to charge
extra for skills he lacks but hopes to pick up as he goes along. Where it counts, at the door
and in the well of the court, one cannot pretend to be a QC.
The QC's independent expertise provides further cost savings to the public purse arising from
the two tier system . Clients, be they criminal or civil, frequently improperly seek to
manipulate the advocate to obtain time, evidence, information and advantage in their cause.
The QC can easily dismiss and reject such appeals because ofthe distance between
themselves and the client, given the QC's quasi-judicial role within the court . The solicitor,
possibly dependant upon the important client's business, is less able to retain such distance
By removing the publicly appointed expert advocate one also removes an important barrier to
temptation and corruption. The advocate will inevitably be drawn into competing for
recognition and be more pliant to the demands of the client's chequebook . It is of note that
solicitor fraud is, if not commonplace, at least commonly known. The reverse is the case
with the barrister and the QC.
The QC's expertise will also be lost to the general public m criminal matters. There are
fortunately few serial killers, rapists and the like and consequently few who specialise in
working m such areas . Would the public benefit m any way from any advocate, however
inexperienced, obtaining a brief from a friendly solicitor or selected from a defective pop
chart and acting in such a case? The initial costs may appear less but the appeals, the
miscarriages ofjustice and the compensation will further stretch the public purse. The tidal
wave of costs which would likely follow a free-for-all under a system where the expert is
identified by self proclamation and self-interested greed is to be feared by all. It cannot be in
anyone's interests that advocates compete on price and publicly perceived notoriety when
what they are selling is legal expertise. The expertise ofthe QC would wither away as they
were forced to broaden their marketing base. The public would also suffer from an increase
in the number of failed prosecutions and m the end, the victims would pay.
The expertise of the QC enables hundreds of complex and controversial cases to run
smoothly through the system each year. The most significant cost savings arising from the
QC's role within the system are harvested daily by the government m the courts . Savings to
the public purse anse from scrupulous and efficient practice, experienced preparation of
complex briefs, expert advice to lay clients, sharply focussed legal argument avoiding bad
points of law, inter-counsel trust and cooperation, good judgement and efficient
administration. It is these skills which smooth the judicial process and greatly reduce
preparation costs, lengths of trials, delays and confusion. The bench's confidence in the QC
and reliance upon the QCs assistance and legal advice in the daily work of the court is
essential to its operation . Advocates operating without quasi-judicial responsibilities will
come to see winning cases as their sole aim as this will be the only route to the top of the pop
charts and the highest rewards . The ability to procrastinate . block and obstruct will become
virtues m a purely reward based, client focussed system.
To conclude, were state appointed QC's to disappear, the formalised conventions and
informal practices upon which the English judicial system has been built would be removed
at a stroke . The minutiae ofjudicial practice would require urgent amendment to avoid the
chaos of ad hoc developments as they struggled to fill-in behind the removal of tried and
tested practices. The existing professional ethic is tightly bound within a judicial partnership,
founded upon trust and integrity, exemplified by the QC and emulated by the junior bar. This
professional ethic would vanish, to be replaced by self-promotion within the marketplace.
This is not the most desirable basis upon which to re-design a civilised legal system equally
accessible to all and serving the community as a whole without regard to wealth, position or
influence. The inevitable consequences of such a change would be the escalation of costs,
the deterioration of standards and the uncontrolled re-balancing of the citizens access to, and
their acceptance of, the impartiality of the courts . No system is perfect, but ours works well,
continues to evolve and is admired and emulated throughout the world. It cannot be m the
public interest to tear the QC out of the English legal system and replace them with
advancement by PR, earning power, notoriety and the megaphone .
Probable consequences of abolition .
1. Costs would escalate .
a.
Judges, not being able to rely upon counsel in general administrative matters, would
find their workload increased The pool ofjudges would need to be increased to deal
with the same level of casework or the judicial machine would slow.
b.
The judiciary would require new expertise. Some judges would require greater
specialist training as their reliance upon the QC's expertise in specialist cases would
no longer be viable .
c.
Delays would arise where unscrupulous clients saw advantage in asking their counsel
to apply for adjournments or make applications which were not compatible with an
overriding duty to the court.
d.
More courts would be required with their supporting staff to deal with the current
level of work
e.
Falling legal standards would increase the number of appeals, mistrials, retrials and
acquittals.
£
At the top of the profession, the numbers of truly skilled specialist advocates would
decrease and prices rocket . At the bottom, competition would push prices down at the
expense of quality. Compensating costs would be transferred to other parts of the
judicial system.
g.
Expert advocates would be forced to seek publicity by advertising, marketing, PR and
grandstanding in court for media attention . This would increase their costs base
2. Standards would fall.
b.
The duty to the court would be subsumed by the need to win. The judge could not
rely on counsel m the same way.
b
The need to win would become the sole aim. This would be the only way to obtain
stars in the pop charts and the only sure route to recognition. Accordingly, standards
would suffer .
c.
The aims of the lay client would supercede the interests ofjustice. Advocates would
be under pressure to take bad points, to attack witnesses unjustifiably and to seek
adjournments when they are not required .
d.
Victims, whose interests the government have pledged to protect, will be one of the
many casualties of the new breed of advocacy. The client will demand that victims
are attacked and refusal will result m sacking and a change of barrister.
e.
The loud and the brash advocate would rise to the top. Publicity seeking would
become systemic.
f.
The constraints that govern the conduct of the advocate will disappear.
g.
The junior bar would have no standard of propriety to aspire to .
h.
There could never be such a thorough vetting process as exists at the moment. The
bar could not afford it. Any replacement kite mark would never be as fair .
The attention given to a fair balance of minorities is unlikely to be maintained by a
purely commercial system .
SASHA WASS QC
2i11/03 QC's 10