Wednesday, February 06, 2008

The Queen's Counsel

Queen’s Counsel are barristers, and more recently advocate-solicitors, appointed by patent to be one of Her Majesty’s counsel learned in the law. It has become a mark of recognition of a leading counsel.

History of the Queen's Counsel

In the late 16th century, a body of counsel were appointed to give assistance and advice to the Solicitor-General and Attorney-General. They were often consulted in capital cases and in cases of state. Queen’s Counsel were at that time expected to become advocates on behalf of the Sovereign. During the reign of a king they were called King’s Counsel.

From the beginning, they were not allowed to appear against the Crown without a special licence, but this was generally given as a formality. This was particularly important in criminal cases, which are mostly brought in the name of the Crown, with the result that, until 1920 in England and Wales, King's and Queen's Counsel had to have a licence to appear in criminal cases for the defence.

Such limitations have since been removed over the centuries, and the office has now become purely honorary and is a recognition of achievement in the legal profession. While it used to be purely confined to barristers, advocate-solicitors have now also been appointed as QCs.

Lawyers who have been appointed as a QC are entitled to wear silk gowns, rather than the ordinary cotton or "stuff" gowns when they appear in court, hence becoming a QC is termed "taking silk" for this reason.

Other jurisdictions

Some Commonwealth countries had also adopted the QC nomenclature, for instance Australia, New Zealand, and Hong Kong. The title of Queen's Counsel has largely been replaced with the title of Senior Counsel instead.

Singapore initiated its own Senior Counsel Scheme in 1997 to recognise outstanding advocates. You can read this interesting interview with the Senior Counsel Selection Committee, an extract as follows:

What circumstances led to the implementation of the SC Scheme in Singapore in 1997? Was it a matter of natural progression, having cut formal legal ties with England in the early 1990s? Or was the Scheme started to provide a career path for practitioners? Would not competence, reputation and previous experience provide adequate distinction? How important was it, at that time, to put in place a scheme that would allow the Singapore legal community to develop its own pantheon of respected advocates?

It was extremely important for Singapore to put in place a formal scheme whereby our best advocates would be accorded due recognition by the Judiciary for their legal expertise and advocacy skills. In the absence of a such a scheme and the easy availability of Queen’s Counsel (“QC”) to plead in our courts, it was inevitable that however good or skilful our advocates might be, they would be looked upon by litigants and the public as second-class litigators and inferior to any QC, whatever his seniority might be. This did not reflect the reality in many cases, although in general it had to be conceded that the best QC was a notch above our best advocate.

In other words, without a formal SC Scheme, we could end up short-changing our own lawyers. The situation was, unfortunately, exacerbated by the perception that QC would get a better hearing from the Judiciary than local advocates, with the result that if one party appointed a QC to represent him, his opponent felt that his case would not be given the same consideration if he did not appoint another QC to represent him. In order to build up our own corps of advocates that could be immediately recognisable by prospective litigants and also by other advocates and solicitors, the SC Scheme was introduced. Such a public recognition would also serve as an incentive for advocates to improve and enhance their legal expertise and advocacy skills in order to attain that status.

Also read this interview with 3 SCs. Highly recommended reading.

A Malaysian Senior Counsel Scheme?

Malaysia does not have any such QC or SC scheme in place. While it is legitimate to stress the importance of giving recognition to outstanding advocates, I would be very fearful of any such system being implemented. The risk of abuse is too great. I can see the grave danger of it being converted into a form of political patronage (if the government has any say in the appointment of SCs).

Lawyers here in Malaysia already point to the lack of transparency and the evident abuse in the judicial appointments system (this is with reference to the recent facts being unearthed before the Royal Commission enquiring into the Lingam tape). I am sad to say that just like for most things in Malaysia, any Malaysian Senior Counsel appointments would possibly be influenced through political connections or even racial quotas, rather than true meritocracy.


Weng Tchung said...

There is one compelling reason for introducing a QC/SC scheme in Malaysia: it will serve as a reliable benchmark or requirement for the appointment of judges.

The question is whether the Bar Council has the power to create or implement such a scheme without legislative intervention.

QCs in England were traditionally appointed by the Monarch and the power to appoint QCs was not derived from Statute as far as I know. The only statutory provision governing QCs in the modern day is one which requires barristers to pay a QC application fee (AJA 1999).

[Forth Width] said...

Hey Leesh, this is going to be quite random and unrelated: I've been meaning to ask whether you got into the Bristol Sound when you were over there, or was it kinda over its prime when you were studying there?

leesh said...

weng tchung: There is the definite advantage of the QC/SC scheme being a benchmark or requirement for judicial appointments. I understand that to be one of the strong factors taken into account in support of the QC scheme when the UK was considering abolishing it.

Looking at the statistics in Singapore, 9 out of the 55 or so SCs have been elevated to the Bench.

The Bar Council could possibly implement such a scheme through the exercise of its power to make rules regulating professional practice (s.77 of the LPA), which arguably is wide enough to cover a SC scheme. However, any such rules would require the approval of the AG and the AG can make any modifications he deems necessary.

I don't foresee the support or implementation of a SC scheme in Malaysia anytime soon. The Bar Council would be justified in continuing in its push for increased transparency and accountability in the judicial appointments system, rather than push for another scheme which has the risk of lacking transparency.

P.S. I have been following your blog for a while now, and I enjoy reading your posts.

leesh said...

tim: Er...I admit that I had to google search "Bristol Sound" to understand what you were referring to. That also means that no, I didn't really get into it, hehe.

Weng Tchung said...
This comment has been removed by the author.
Anonymous said...

"I can see the grave danger of it being converted into a form of political patronage (if the government has any say in the appointment of SCs)."


Look at Singapore for a prime example.

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