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A Department for Constitutional Affairs Consultation Paper

Constitutional Reform:
The Future of Queen's Counsel

July 2003

Annexes

[An Adobe Acrobat viewer is needed to view PDF documents, and this is freely downloadable from http://www.adobe.com.]

Introduction

This paper asks questions about the current role of Queen's Counsel (or Silk), its advantages and problems, and possible ways forward. It considers also whether the Queen's Counsel system is objectively in the public interest and whether it commands public confidence.

The consultation is aimed at users of legal services, members of the legal profession, including all current holders of the title of Queen's Counsel in England, Wales and Northern Ireland. This consultation is being conducted in line with the Code of Practice on Written Consultation issued by the Cabinet Office. It falls within the scope of the Code. The criteria, which are set out in Annex I of this consultation paper, have been followed.

One of the aims of this paper is to collect evidence to enable us to undertake initial assessments of the impact on the public, customers, and business. The information received will be used to inform policy development and to develop a full regulatory impact assessment, which will be published in due course.

A full list of those being consulted is at Annex G. Those being consulted include all holders of the title of Queen's Counsel in England, Wales and Northern Ireland, the judiciary, legal professional bodies, other professional bodies, representatives of businesses (including small businesses), consumer organisations, Government departments and public bodies.

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How to respond

England & Wales

Please send your response by 7 November 2003 to:

Queen's Counsel Branch
Courts Policy Division, Legal & Judicial Services Group
Department for Constitutional Affairs
2nd Floor
Selborne House
54-60 Victoria Street
London SW1E 6QW

Tel: 020 7210 8984
Fax: 020 7210 8925
Email: queenscounsel judicialgroup

Northern Ireland

Please send your responses by 7 November 2003 to:

The Departmental Consultation Co-ordinator
The Information Centre
Northern Ireland Court Service
Windsor House
9-15 Bedford Street
Belfast BT2 7LT

Tel: 028 9032 8594
Fax: 028 9041 2390
Email: informationcentre@courtsni.gov.uk

Representative groups are asked to give a summary of the people and organisations they represent when they respond.

The Department may wish to publish responses to this consultation document in due course. Please ensure your response is marked clearly if you wish your response or name to be kept confidential. Confidential responses will be included in any statistical summary of numbers of comments received and views expressed.

Further copies of this consultation paper can be obtained from Queen's Counsel Branch at the above address or by phoning 020 7210 8984. A Welsh version of the consultation paper will also be available by contacting the Queen's Counsel Branch or on this website.

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Foreword

By the Right Honourable the Lord Falconer of Thoroton, Secretary of State for Constitutional Affairs and Lord Chancellor

There has long been a debate about the relevance and use of the rank of Queen's Counsel. The time has come to bring that debate to a head, and to reach conclusions, after full consultation on the way ahead. Over the last four centuries, the QC system has become a well-established part of our legal structure. But the legal system must meet the needs of the public. The system must be capable of identifying those with the skills and expertise to deal with any particular dispute. In particular, it should be able to recognise the wide variety of skills needed to provide the public with the legal service it needs. This paper therefore explores whether the current QC system is objectively in the public interest and whether it commands public confidence.

I have no predetermined answers to the questions raised in this paper. My aim is to promote discussion and debate among the public and the legal profession. I hope for the widest range of views from the widest range of people. In particular, this paper has to cover a number of topics. That does not mean that I want to hear only from those who wish to deal with all of them: I welcome responses that only deal with some aspects. I look forward to hearing your comments.

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Executive Summary

The consultation paper discusses the following issues:

The paper begins with some background information about the legal profession and sets out the differences between Queen's Counsel and junior advocates.

There follows a discussion of the arguments for and against the continuation of the rank in its current form.

The next section discusses the arguments for and against continuing the current state role in the quality mark for advocacy services, also outlining the extent of state involvement in senior lawyer marks in other jurisdictions and quality marks in other UK professions; and deals with honorary Silk.

The paper then considers the impact on customers and on the market for legal services of removing the rank, and the implications for existing QCs of the possible ways in which that might be done.

The final section discusses the award procedures if the rank of QC (or some other form of quality mark) is deemed necessary or desirable.

The Annexes deal with the current criteria for award, the current selection procedures, the position in other jurisdictions, and quality marks in other UK professions and trades.

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The Current Position

The two branches of the legal profession: England & Wales

  1. The legal profession in England and Wales is divided into two branches. Barristers are specialist legal advisers and courtroom advocates. At the end of December 2002, there were 10,742 barristers, 1,145 of whom - around 10% - were Queen's Counsel. Solicitors provide a wide range of legal services, from general legal advice, through preparing cases for court, to appearing as advocates. All solicitors can appear as advocates in the lower courts, and since 1993 have been able to seek to appear in the higher courts as well [Endnote 1]. In August 2002, there were 89,045 solicitors, 1,787 of whom had rights to appear in the higher courts and 7 - less than 0.5% - were Queen's Counsel.

Advocates

  1. Advocates are the lawyers who appear in court to argue a case before a judge or tribunal. Barrister advocates are divided into junior and Queen's Counsel [Endnote 2]. The first Queen's Counsel was appointed at the end of the sixteenth century to supplement the advice given to the Crown by the Law Officers. During the seventeenth century, the office "was granted more frequently and came to be seen as a bestowal of rank on an individual rather than as an engagement of forensic assistance for the Crown" [Endnote 3]. Until 1996 [Endnote 4], only barristers were eligible for appointment as Queen's Counsel, but the right was then extended to solicitors with rights to appear in the higher courts.

  1. Queen's Counsel have traditionally been appointed annually by The Queen on the advice of the Lord Chancellor. Lawyers who wish to be considered are invited to apply to the Lord Chancellor. In the last three years, individuals have had to pay a fee to cover the administrative cost of processing their application [Endnote 5]. Following wide consultation with the judiciary and the profession, the Lord Chancellor then recommends for appointment those practitioners whom he considers have demonstrated that they meet the criteria to a degree which marks them out as leaders of the profession, that is to a standard comparable with those already appointed Queen's Counsel in the same or comparable practice type [Endnote 6] (the kind of work which lawyers do varying considerably with the area of law involved). The current criteria and more details about the appointment process are set out at Annexes A and B.

  1. The status of QC is also awarded on an honorary basis to people who are not practising advocates, but who have made a significant contribution to the law, for example as distinguished academics.

Formal privileges

  1. Appointment as a Queen's Counsel brings a number of formal privileges. First, Silks wear a distinctive uniform. Different forms of dress are worn by QCs, junior barristers and solicitor advocates. In court, QCs wear a short wig, wing collar and bands and silk gown over a special court coat; junior barristers wear a short wig and stuff gown with bands; solicitors and other advocates authorised under the Courts and Legal Services Act 1990 wear a black stuff gown, wing collar and bands, but no wig.

  2. The Secretary of State for Constitutional Affairs is addressing the matter of court working dress in a separate consultation paper, which is available on the DCA website and closes for consultation on 14 August 2003.

  3. Secondly, the judiciary have traditionally given QCs a formal right to address the court before any other advocates (although it is doubtful whether this right has any longer any practical significance).

  4. Thirdly, Silks sit in a particular part of the court. They are entitled to sit in the front row (also known as sitting "within the Bar in the Supreme Court"). This tradition is a matter of professional etiquette, rather than part of the practical process of discharging business.

  5. It has been argued (including by The Law Society) that Silks' distinctive dress and position in court alone may offer QCs an unfair competitive advantage over junior counsel. Some respondents to In the Public Interest? [Endnote 7] including the Bar Council and the judiciary [Endnote 8], however, argued that QCs' position on the front row did not offer them any advantage.

Differences in work undertaken by junior and Queen's Counsel

  1. Queen's Counsel tend to specialise in different types of work. First, cases which are legally or factually complex, or of significance, or where the law is not clear may need specialist expertise. Secondly, in some areas of the law at least, Queen's Counsel appear in court more often than junior counsel, and therefore have the chance to develop and practice specialist skills in advocacy. Thirdly, in cases where there is a large amount of material to be managed, a Silk may be chosen to lead a team of advocates. These categories, of course, often overlap. Juniors will generally deal with more routine cases and matters of lesser complexity. For example, in publicly funded criminal cases, a judge (when asked to do so) will certify whether a case requires the use of a QC instead of a junior, or more than one advocate (including a QC leading other advocates). Whether or not the use of a QC or more than one counsel can be justified will depend on the weight and complexity of the case [Endnote 9].

  2. This tendency to do different kinds of work is an important element in the role of a QC. For many of the more able practitioners considering whether to apply for Silk, it marks the stage in their career at which they have the opportunity to start to take on fewer, but larger or legally more complex, cases. Responses to In the Public Interest? said that "the QC kitemark ring-fences that barrister to have more time to deal with complex matters". It was also said of barristers attaining the QC mark "if they are good, then they will build up a following and achieve whatever is the mark of distinction. Furthermore, such a person works best if another advocate (of less seniority or experience) is teamed with them to do the work which does not require the attention of the team leader and to provide cover for the contingencies, particularly with trials and trial arrangements. Thus trial lawyers in America work the same way with a leader and team support" [Endnote 10].

  3. These differences in kinds of work were once a matter of professional regulation. Until 1977, Queen's Counsel were prohibited by the Bar's Code of Conduct from appearing in court without junior counsel, and from authorising the pleadings (the formal statement of the issues in a case) or other formal documents needed for litigation. Since then, Silks have been able to appear alone, and to settle and sign such documents. (The Director General of Fair Trading has, however, questioned whether informal demarcations still remain. This is discussed further in paragraphs 18-23).

Differences in fees charged by junior and Queen's Counsel

  1. A focus on fewer, more complex cases usually leads to an increased fee rate per case. This may explain why appointment as a QC is widely assumed to be an opportunity for practitioners to increase, perhaps substantially, the fees they charge for cases. There is, for example, some anecdotal evidence, backed up by a very small number of respondents to In the Public Interest?, of practitioners increasing their fees for cases in which they were already appearing at the time of appointment. The Criminal Bar Association noted that "fees do generally increase upon appointment as a QC", but referred to QCs' superior skills and different mix of work. Others - from both sides of the profession - point out that prices are a matter for the market to accept or reject. The Department has discussed with the Bar Council the feasibility of research to examine the effect of appointment as a QC on barristers' earnings, but it has so far not proved possible to find a research methodology which would meet the legal requirements for the protection of sensitive personal data.

  2. The greater complexity of work taken on by QCs is illustrated, for example, by the regulations governing remuneration in publicly funded cases. QCs and junior barristers who are leading in or managing a case are automatically entitled to higher rates than juniors per se, and juniors' rates in cases with more than one advocate are linked to QC rates rather than to the basic graduated fee scheme [Endnote 11].

Other consequences of appointment as Queen's Counsel

  1. In relation to their practice, QCs benefit from certain exemptions in the Code of Conduct for the Bar of England and Wales (which sets out the requirements for practice as a barrister and the rules and standards of conduct applicable to barristers in England and Wales). A central tenet of the Code is that barristers in independent practice must comply with the so-called "cab-rank rule", and accordingly must work in any field in which they profess to practise, accept any brief to appear in court, accept any instructions and act for any person on whose behalf they are instructed. Because of the expectation that they will deal with particularly complex cases, or lead a team, the Code specifies for QCs that they are not obliged to accept instructions to settle documents of the kind normally settled by junior counsel, nor are they obliged to act without a second (junior) counsel being instructed if they consider that the interests of the lay client require the additional instruction [Endnote 12].

The position in Northern Ireland

  1. There are currently 67 Queen's Counsel in Northern Ireland within a total practising Bar of just over 550 counsel. The power of appointing Queen's Counsel in Northern Ireland is exercised by Her Majesty The Queen acting on the recommendation of the Lord Chancellor who is, in turn, advised by the Lord Chief Justice of Northern Ireland (the current selection process for Silk in Northern Ireland is described in Annex C). Appointments are made every two or three years, although the invitation to apply is not issued on a fixed basis.

  1. As the Lord Chancellor has overall responsibility for making recommendations to The Queen for the appointment of QCs in Northern Ireland, a decision to change the role of the state in relation to the rank of QC would apply in Northern Ireland also.

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The Involvement of the Crown
  1. In 2001, the Director General of Fair Trading published a Report pdf document on competition in the professions, which was followed by a progress statement pdf document in April 2002. In the 2001 report, he raised a number of issues and offered views on the Silk system's value to consumers, how it operates as a quality mark and the extent to which the current rank acts to distort competition. These included:

    • whether it is appropriate for the Crown to confer a title on selected practitioners within a profession which enhances their earning power and competitive position relative to others;

    • whether clients need a quality mark when direct access [Endnote 13] to barristers is restricted;

    • concerns about the selection process, such as the absence of a requirement for professional examinations;

    • whether it would be better to have some continuing quality appraisal to ensure that the quality mark of QC remains justified;

    • the extent to which the increase in fees that QCs are said to command following appointment is a sign of a distortion of competition;

    • the possibility that there is or may have been an informal quota system in making awards which has also distorted competition;

    • whether the effective demarcation of certain services between QCs and junior barristers may distort competition between barristers and with others (such as solicitor advocates); and

    • whether the effective demarcation of certain work to QCs only, despite the removal of formal demarcations, is enforced by perceptions of the level of representation needed to have a case presented effectively.

  1. The Government subsequently published a consultation paper in July 2002 entitled In the Public Interest?, which sought views on these issues and asked for comments on the perceived benefits and potential drawbacks of the current system. Although the paper did not specifically seek comments on whether the current system should be retained, many of the responses touched on this fundamental issue. A summary of the responses to that paper - most of them from lawyers rather than users of legal services - was published on 14 May 2003. Although there was no clear majority in favour of any particular way forward, there was a strong body of opinion which supported some form of significant change. In particular, many respondents doubted whether state involvement was appropriate.

  2. The Director General of Fair Trading considered "fundamental" the "issue of whether, given that the historical origins of the [QC] title no longer correspond to its function, it was right for the Government to have responsibility for conferring on selected practitioners in a profession a title that manifestly enhances their earning power and competitive position relative to others" [Endnote 14].

  3. A number of respondents to In the Public Interest? said that the involvement of Government in the selection process is no longer appropriate, even if some form of quality mark might continue to be useful to the users of legal services. For example, it is argued that there is a conflict of interest between the Government's role as a major purchaser of legal services and its role as guardian of the process which confers a superior rank on some suppliers of legal services. As noted in paragraph 42, The Law Society argues that it is not appropriate for quality work in a single profession to be recognised through a formal appointment by The Queen which confers a specific rank and precedence in society conferred only on one profession. It also argues that "it is undesirable, in principle, for the leaders of an independent profession to be selected by a Government minister, notwithstanding the fact that there is no evidence that the appointment function has been abused in the recent past" [Endnote 15].

  4. These arguments suggest the need for a strong case to justify why the current role of the rank of QC is of such central importance to the effective operation of the legal system that it should continue to be made by The Queen on the advice of ministers. It may be that it is for those who are not prepared to trust the market to make that case. The indications from customers (paragraphs 19-21) certainly suggest that the rank of QC in the legal services market does not provide a useful kitemark in practice, and that the market might work more effectively if the QC mark were to be removed [Endnote 16].

  5. It can be argued that Her Majesty's involvement and the status conferred by a Royal appointment play a significant part in the wide recognition given to the QC rank in this country. They may also be significant factors in making the use of legal services based in England and Wales internationally competitive.

  6. There are two arguments linked to the administration of justice which might also be thought to justify the Government having a role in determining which people should be identified as being the leaders of the profession. First, the judiciary's response to In the Public Interest? noted that "under the established system, the Courts rely heavily on advocates to perform their role properly and honestly; they could not function effectively without that support. The importance of this role is heightened in cases of special difficulty or complexity, or those subject to particular public or political interest, in which QCs are most likely to be involved." If Government involvement in the appointment of leading counsel is to be justified on the grounds of the public interest in the advocate's duty to the court, there would appear to be a strong argument that the Government should be at least involved in any disciplinary system to deal with breaches of that duty. That is currently solely a matter for the Bar Council. Greater Government involvement in this context would appear very difficult to reconcile with proper professional independence.

  1. Secondly, the judiciary's response suggests that the QC system also plays a useful part in identifying future candidates for appointment as senior full time judges. The Bar Council, however, says that "most High Court Judges and other senior judges have been QCs before their appointment. Nevertheless it is the firm view of the Bar Council that appointment as a QC should not be regarded as a necessary stepping stone to appointment to the Bench. The office should be regarded as a position and an honour in its own right." The Bar's view is reflected in current appointment procedures. Whilst there are similarities in some of the criteria for appointment as a QC and for judicial positions, the latter are considerably wider: the qualities needed to be a good advocate are not necessarily those needed to make a good judge. It is, however, the case that, apart from Treasury Juniors [Endnote 17], barrister High Court judges have invariably been Silks. Despite the clear differences in the criteria, and efforts to improve the transparency of the system, that might have contributed to an impression amongst some that the rank of QC is restrictive because it narrows the field from which the higher judiciary is usually recruited.

  2. The extent to which the Government should run the process might also be affected by how eligibility for a quality mark was determined. For example, it might be less appropriate for the Government to control a system which depended on examination of expertise in specialist areas, or required re-accreditation at regular intervals, since these measures would increase the dependency of lawyers on the Government for the continuation of their professional status.

  3. Under the current constitutional arrangements, the rank of QC can only continue with state involvement. That is because it is an appointment which creates a specific (though purely notional) relationship with the Crown and which carries a defined precedence. It can therefore only be made by The Queen. Currently that requires the involvement of a minister. Removing the role of the Government but retaining appointment by The Queen would entail a significant change to our wider constitutional arrangements. One of the limitations on the power of the Crown in our constitutional monarchy, is that The Queen acts - including when making appointments - only on the advice of Her ministers, who are accountable to Parliament. This ensures that ministers and not the Crown personally can be held to account by Parliament for the appointment process.

  4. The powers of Parliament to change the normal constitutional arrangements in this respect by legislation are effectively without limit. If it were thought desirable, Parliament could of course decide to pass legislation that would empower someone other than ministers to advise The Queen on appointments as Queen's Counsel [Endnote 18]. That could be a public body: there are for example, independent regulatory bodies with no ministerial involvement in their work such as the Electoral Commission, which operate within a framework laid down by Parliament. It could also be a body or bodies from completely outside the public service: the most obvious options being the legal professional bodies.

  5. The role of an independent body overseeing the appointment of Queen's Counsel would, however, not simply be regulatory and would not be subject to Parliamentary approval. If it were decided that the rank of Queen's Counsel should remain, the removal of all ministerial accountability to Parliament for this process would be a major innovation and would require careful consideration. Different issues would arise in relation to a wholly independent public body, such as a Judicial Appointments Commission on the appointing model discussed in the consultation document on that subject; and one with close links to the legal profession, such as one or more of the professional bodies. In particular, the latter option would appear to be subject to the concerns raised by the Director General of Fair Trading as to whether it is appropriate for the Crown to confer a title on selected practitioners within a profession which enhances their earning power and competitive position relative to others, and to The Law Society's concern as to whether it is appropriate for that form of recognition to be confined to a single profession.

  6. A less radical option would be for the relevant minister to take advice from a third party. For example, it might be possible for judges, with suitable administrative support, to conduct the Queen's Counsel competition and advise the relevant minister. As with the proposals being discussed in relation to the Judicial Appointments Commission, that could operate in different ways according to the amount of discretion the minister had in relation to the appointments. On one approach, all candidates put forward could be endorsed by the recommending body as meeting the criteria, and could be ranked according to the assessment of their suitability, but the minister would be free to recommend, or not, anyone on the list. On another, the minister would be offered only the names thought suitable, and be expected to recommend for appointment the whole list. His or her discretion would be limited to rejecting the whole list and requiring that different names be submitted. As with the option of recommendations being submitted directly to Her Majesty, different approaches would be required if the body making recommendations to the minister was wholly independent, or had direct links to the legal profession. It is particularly likely in the latter case that Parliament would wish to be satisfied that the real decision-maker under a system of this kind could be held accountable for its decisions. If respondents wish to put forward suggestions which follow this model, careful thought must be given to how adequate accountability is to be achieved. Any change along these lines would also require legislation.

  7. It might be possible for the proposed Judicial Appointments Commission, under either of the models being considered for it, to assume responsibility for conducting the annual Silk round or for advising the relevant minister who should be recommended to The Queen for appointment. This would have the obvious advantage of bringing together, in a single, independent body, the assessment of candidates for the two major groups of appointments from among the legal profession for which the Lord Chancellor is currently responsible.

  8. There are, however, arguments for treating these groups separately. The criteria for judicial appointment, and for recognition as a leader in the profession of advocacy are very different, and so is the evidence as to whether the criteria are met. There has in the past been considerable confusion as to the extent to which appointment as a Queen's Counsel has been a prerequisite for appointment to the senior judiciary at least (an issue also discussed in paragraph 25). Asking a commission to take on the task of assessing candidates for Silk might arguably perpetuate this confusion. It might also create a significant risk that the focus of a judicial appointments commission would be lost if it also had to run a second, and rather different process.

The role of the state in other (non-UK) jurisdictions

  1. The extent of state involvement in Queen's Counsel (or equivalent) schemes in other jurisdictions varies (see Annex D for a range of examples). In many cases, the state is responsible for making the final appointment, often on the recommendation of the Chief Justice or a committee of selection. In other jurisdictions where - unlike here - the constitution permits it, appointments are made directly by the Chief Justice or on his or her recommendation. Some jurisdictions have no mark of distinction of quality comparable to the QC mark.

  2. The approaches taken in other jurisdictions are clearly of interest when considering what the system should be in England and Wales, and Northern Ireland. The wide range of different schemes and of the division of functions within different branches of the legal profession means that they are of limited value for establishing the most appropriate policy for these jurisdictions.

Government involvement with quality marks in other UK professions

  1. There are a number of examples of quality mark schemes in other professions (see Annex E for details). Many are Government-sanctioned schemes. But one key difference is that the Government's role is usually to regulate or oversee the system by which the quality mark (or equivalent) is awarded, rather than directly to make the awards itself.

  2. It might be argued that a greater degree of involvement might be justified in the provision of legal services, since the Government obviously has a vital role in safeguarding the public interest in respect of the fees paid for publicly funded work. Certainly, it must ensure that public money is properly spent. This is achieved through various legal aid remuneration and quality assurance schemes, which are designed to reassure members of the public who need legal information, advice and other help that they will receive a quality assured service. But providing a framework within which standards of service can be set might arguably be distinguished from making individual awards which confer a rank, but give no guarantee of levels of service.

Question 1: Do you consider it appropriate for the state to be awarding a promotional rank in a profession? What are your reasons?

Question 2: Do you consider that the public interest would suffer if the Government were not directly responsible for the selection process for any quality mark scheme? What are your reasons?

Question 3: If you do not consider that the state should continue to be involved in the award of QC, can a change to the current constitutional arrangements which prevent The Queen from acting other than on the advice of ministers be justified? What form should that change take (including adequate measures for accountability to Parliament)? What are your reasons?

Question 4: Can an arrangement under which the relevant minister makes recommendations, having been guided by another body, be justified? To what extent should the minister be bound to accept the advice of that body? What form should that arrangement take (including adequate measures for accountability to Parliament)? What are your reasons?

Question 5: If you support the option in Question 4, as the Government will be establishing a judicial appointments commission, should this be the advising body? What are your reasons?

Question 6: If it were to be decided that the rank of QC should be discontinued, do you consider that the Government should have an ongoing role in overseeing the framework of any new quality mark scheme that the Bar Council and/or the Law Society (or any other body) might decide to introduce? What are your reasons?

Honorary Silk

  1. Paragraph 4 explains that honorary Silk is sometimes awarded to individuals who are not in practice, but who have made a significant contribution to the law. If the rank of QC were abolished, the practice of awarding honorary Silk would also cease since the prestige it confers comes from placing those who receive it on the same level as those recognised as the leaders of the practising profession by the award of practising Silk. If the professions were to develop other ways of recognising excellence as a practising professional, they might wish also to consider whether and if so how those quality marks might be extended to non-practitioners such as leading academic lawyers.

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Should the Rank of Queen's Counsel Continue?

  1. In the Public Interest? asked users of advocacy services (clients instructing a solicitor or going direct to a barrister; solicitors; or foreign lawyers) how useful the QC mark was to them. The following points were made in favour of the current system by barristers and solicitors:

    • it provides a body of advocates who are identified as leaders of their profession and so gives a clear mark of distinction as an advocate;

    • that mark is internationally recognised, and as such is both an example to other systems, and a very substantial source of foreign earnings, particularly by attracting commercial litigation to the UK;

    • it assists solicitors in selecting the quality of legal assistance their client needs, particularly in areas with which the solicitors may be less familiar;

    • it allows users to instruct with confidence advocates of whom they have little or no experience;

    • it enhances competition in the interests of the consumer, by enabling solicitors to shop around among a number of barristers who have been recognised by the award of Silk; and

    • it promotes and maintains the level of expertise amongst practitioners, which is important for the court system; and

    • it provides a career structure for barristers.

  2. The Bar Council emphasised that QC status "signifies that the holder is at the top of the profession as a practising advocate". Similarly, the judiciary considered the QC system "not simply as a quality mark in the market, but as an important part of the machinery of justice".

  3. Other respondents, however, did not find the QC mark to be of use [Endnote 19]. They saw the market in legal advocacy as highly developed and were not convinced that solicitors needed a broad and undifferentiated quality mark to help them decide whom to instruct. Competence, reputation and previous experience were said to be the deciding factors when instructing an advocate in a complex case. Many solicitors thought there were better ways of assessing these qualities than by relying on the QC status alone, and that it was part of their role to find the right advocate for a case. Many firms therefore had arrangements for assessing systematically how well they thought barristers had done. Where solicitors were unsure about whom to instruct they would consult others both inside and outside their own firms. To help in this process, there is a range of reference books and web sites which identify the experts in different areas of practice. Whilst this material might be focussed, regularly updated and easily accessible by solicitors and members of the public, it could also be subject to bias or error.

  4. Other concerns included:

    • the rank of QC is not a reliable guarantee of quality or - in an increasingly specialist market - expertise (particularly as the current system does not include a stage for review and possible removal, or indicate the area of any specialism);

    • the rank restricts competition and does not allow market forces freely to determine the allocation of resources. For example, it is suggested that choice is reduced because the system discourages the use of highly competent junior counsel;

    • the division of the barristers' profession into only two ranks does not constitute a sufficient career structure, and the emphasis on the attainment of QC places a disproportionate premium on that step;

    • the current focus on oral advocacy in court puts at a disadvantage any barrister who specialises in areas of the law where the majority of his or her work is on paper or is directed towards achieving resolution out of court. Solicitors are seen to be similarly disadvantaged.

  1. The Law Society in particular has for some years been concerned that "the designation of Queen's Counsel is essentially a public honour accorded to a private group. There is no logical reason why such an honour or its equivalent might not be given to outstanding doctors, dentists or accountants. The rank has long since ceased to have any relationship with being Counsel for The Queen. The designation is a mark of patronage that is inappropriate in the modern age" [Endnote 20]. The Law Society has therefore not participated in the automatic consultation process for Silk appointments since 2000.

  2. A number of the responses to In the Public Interest? addressed the Director General of Fair Trading's views on the possible anti-competitive effects of Silk. One response said "we think that [the QC system] very clearly operates to distort competition in a number of ways… We do not think that there is any need for a quality mark in the market for individual barristers' services. Those services are mainly purchased by specialists and there is ample information publicly available about the relatively small number of barristers to enable those specialists to make informed choices. Direct access has not so far been…sufficiently extended to the point where the question arises about whether sufficient information is available to members of the public" [Endnote 21].

  3. Another view was that "distortion in the market takes place where candidates have been unsuccessful in applying for Silk or, fearing they would be unsuccessful, do not apply for Silk. There are several such very good persons who fall into this category at any one time. As they become more senior, work may be diverted from them to people who have successfully applied for Silk. This is because, in some cases, a purchaser simply wants a QC for the sake of having a QC and even though the other barrister - of equal seniority - would do the job as well or sometimes better, because he or she is not a QC the work is not forthcoming… The authors of this report are aware of some senior juniors whose practices have declined after the age at which the market considers they should be in Silk if they were ever going to be" [Endnote 22].

  4. Some respondents raised concerns that the formal privileges of the rank gave QCs a special prominence in the court room through dress and location which could give an unfair competitive advantage, although the judiciary considered they were well able to discount this when hearing cases.

  5. Taken together, the findings of the OFT report and the comments on how the current system operates made in response to In the Public Interest? suggest that, while a quality mark may have some benefits, the current system may:

    • directly or indirectly distort competition in relation to the provision of advocacy services; or

    • not be the most effective in meeting the modern needs of users of legal services, in particular by giving a disproportionate weight to resolving disputes by litigation in open court.

  6. The Government's provisional view is that retention of the rank in its current form can only be justified if:

    • it serves a helpful purpose for users of legal services;

    • any benefits clearly outweigh any problems, and in particular the extent to which it may distort competition in the market for legal services and its possible effect on fees; and

    • its possible benefits cannot be provided in other ways free of such disadvantages.

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The Implications of Removing the Rank of Queen's Counsel
  1. If the Government concluded that the rank of Queen's Counsel should not continue, there would be three key issues to consider:

    • the impact on customers using legal services, including court users;

    • the impact on the legal services market; and

    • the position of existing and aspiring QCs.

The impact on customers using legal services, including court users

  1. The response to In the Public Interest? did not produce many concrete examples of the QC rank being used as an effective guide when selecting an advocate. A number of respondents said that it had a general usefulness, but more detailed responses tended to argue that what was relevant to an instructing solicitor was the individual advocate's experience and skills. They had frequently found the right junior counsel to be of better value than a QC. It was also said that the rank of QC drove up legal costs unjustifiably. There was a perception that QCs were now instructed in circumstances where their particular skills were not really needed: for example, because it might be thought that judges would pay more attention to a QC's argument, or because a simple equality of arms was needed - just because the other side had already instructed a QC. Such perceptions could have the effect of tilting the market in favour of QCs and against experienced juniors.

  2. If the responses give an accurate picture of how solicitors and others decide when to instruct, abolition of the rank could therefore have two beneficial effects in relation to these problems and to the others identified in paragraphs 19-21. First, it could lead to a more effective reliance on information about individual advocates and their skills, so that consumers would pay only the price reflecting the real value of the service they are buying, rather than paying for a badge or QC 'brand'. Provided that information flowed freely, the market would determine which barristers could command higher prices on the basis of the quality of their work.

  3. Secondly, abolition of the rank could reduce costs for users because those who are currently QCs might have to review their fees to become more competitive with experienced junior counsel. Conversely, experienced junior counsel might command higher fees if the QC 'ceiling' were removed. If, however, it is thought that fee levels in the current system are governed only by the skill and expertise of the advocate in any particular case, there might be no significant change, because individuals are already paid according to the extent of their specialist input.

  4. In most cases, barristers are still instructed through a solicitor. The Bar Council has, however, established a scheme (BarDIRECT) which allows certain clients to instruct barristers direct. Organisations or individuals with expertise in particular areas of the law (for example, the Architects and Surveyors Institute, the Association of Authorised Public Accountants, the Institute of Chemical Engineers and the Association of Building Engineers) can apply to the Bar Council to be licensed to instruct barristers directly in those areas. The licence can cover both advice and representation and permits licensees to instruct barristers either on their own affairs or on behalf of their clients. In addition to the BarDIRECT scheme, members of some professional bodies are able to instruct barristers on matters within the scope of their professional expertise before tribunals and magistrates' courts using the Direct Professional Access scheme.

  5. In response to the Office of Fair Trading Report Competition in Professionspdf document the Bar Council has also recently put forward proposed new rules to the Lord Chancellor for his approval. These rules provide for members of the public to instruct barristers directly. The circumstances in which barristers would be able to accept instructions are limited, however, and preclude work in the areas of immigration and asylum, family and criminal proceedings. The Bar Council argues that this is due to the sensitivity of these areas and the need for a high degree of ongoing litigation support, which barristers are generally not equipped to provide. The Bar Council's application is under consideration.

  6. The Department has, however, received competition advice from the Director General of Fair Trading (DGFT), who has argued that the Bar Council's proposal to limit direct access in areas such as immigration and asylum is largely unnecessary. The DGFT has also argued that the continuing prohibition on litigation by barristers in independent practice will greatly restrict the impact of the proposed relaxation of the direct access rules. This advice is published on the OFT's website at www.oft.gov.uk.

  7. If the rank of QC were to be abolished, it might be argued that this would make it more difficult for users of the direct access scheme to identify the appropriate advocate in their case. Alternatively, it may be that the QC rank does not greatly assist at present, or that other schemes are needed to meet the needs of non-lawyer customers. For example, the current rank is a general one, which gives no indication of areas of practice, and non-lawyers might fail to appreciate the importance of specialist expertise in some areas of law. It might also be argued that the state's involvement in the QC scheme could not be justified by its advantages for the direct access scheme since that benefits only one sector of providers of legal services, in a widening market. The possibility that the legal profession might wish to develop further its own arrangements for recognising high quality work were the rank of QC to be abolished is discussed further in paragraphs 81-83.

Structural implications

  1. It will clearly be important to identify both the economic and structural impacts on the legal services market of abolishing the rank before a decision can be made about whether to take this step.

  2. Most obviously, abolishing the rank (or making it of no relevance to practice as an advocate) would remove the current clear division of advocates into leading and junior counsel, unless the relevant minister and the judiciary agreed to give formal recognition of some kind to a future scheme developed by the profession.

Selection for publicly funded work

  1. Another obvious issue is the arrangements for the remuneration of publicly funded work. The current QC rank provides an established if broad indicator of expertise around which to structure the rates for handling more complex work. For example, in criminal cases, remuneration is divided into different bands depending on the nature of the case, with higher rates paid to QCs. The courts have powers to review the complexity size or seriousness of individual cases, and to authorise the use of a QC alone or more than one advocate of specified rank. If the Government were to decide that the rank of QC did not provide an adequately comprehensive and flexible guide to the quality of advocacy services, or that the involvement of the state was not otherwise justified, it would be necessary to change the basis of remuneration for the high standards of work required in complex cases. It should be noted that the remuneration systems will almost certainly need to be reviewed in any event, to support the aims of the criminal justice system's Case Preparation and Progression Project, which is developing improvements in the way criminal cases are brought to court, and which the Department aims to implement in 2005.

  2. One option might be to move to a system where a more flexible range of different rates would be paid according to the complexity, size or seriousness of a case or type of case. This would have to be coupled with a more sensitive means of identifying whether a particular practitioner had the appropriate skills and experience to take a case, perhaps using the Legal Services Commission's [Endnote 23] contracting scheme as a model [Endnote 24]. But the responses to In the Public Interest? raise questions about the extent to which the QC rank can provide a sufficiently flexible and focussed indicator of expertise and specialism. It would appear that firms of solicitors are already using rather different methods for deciding whom to instruct to appear in challenging cases. The Legal Services Commission is also developing a range of different methods of ensuring quality in publicly funded services including contracting schemes. There are therefore several approaches to finding new and better ways of matching people to cases which can be explored.

  3. The Government aims to announce its decisions on the future of the rank of QC early in 2004. A more flexible graduated fee scheme is not to be introduced until 2005 at the same time as changes arising from the Case Preparation and Progression (CPP) Project. It would, for practical reasons, be difficult to introduce changes any sooner. That is because there needs to be extensive consultation on changes and a substantial period after that (6-9 months) to deliver the necessary software changes in the Court Service and in Barristers' Chambers. The earliest practicable implementation date would therefore be autumn 2004. But additional reform six months before the CPP reforms were implemented would cause unnecessary upheaval and cost for all concerned. It would therefore be preferable to introduce all these changes on a single date.

  4. If the Government decides that direct state responsibility for granting quality marks to senior advocates is to cease, it will be necessary to make immediate interim changes to the rules governing remuneration for publicly funded work. These would ensure that, if no fresh appointments to the rank of QC were made or the rank was abolished, higher rates of payment were still available for the more difficult, complex, or substantial cases. One possibility is that the existing rule structure would remain much as it is now but that it would be a matter for the solicitor responsible for the case to ensure that the instructed advocate or advocates had the necessary higher skills.

Selection for other kinds of work

  1. Another issue is that the QC rank is used to identify the seniority of practitioners to take on particular kinds of work. Examples of this can be found in some legislation which provides for QCs to be appointed as arbitrators [Endnote 25], and some departmental practice, such as the use of QCs to hear cases on the Restricted Patients Panel in Mental Health Review Tribunals [Endnote 26]. The use of a QC is also a condition in many contracts (where it is frequently the case that an opinion from a QC is a pre-condition to the acceptance of liability). In contracts where the parties are in different countries, it is also not infrequent to stipulate use of a QC to arbitrate in the event of a dispute, marking the international recognition which the rank carries.

  2. It seems likely that these provisions have developed in the absence of more focussed selection criteria. Arguably, selection through training or specific experience would in principle be better. In relation to arbitration and similar issues, for example, a suitably demanding qualification in arbitration and mediation techniques might be more appropriate than a quality mark which depends for award very largely on success in adversarial litigation. Similarly, training in the more complex aspects of mental health law could be a more effective selection criterion than a rank which gives no indication of specialist judicial skills in a particularly sensitive area.

Other implementation issues

  1. The structural use of the QC status described in the two paragraphs above would require some legislative change if the status was to be changed substantially or abolished. The secondary legislation governing legal aid remuneration would also have to be changed, as would a Pastoral Measure of the Church of England [Endnote 27] and two pieces of secondary legislation providing for the use of QCs as arbitrators or commissioners [Endnote 28]. Some primary legislation would become otiose and would need to be tidied up at a suitable legislative opportunity. Practice Directions would be needed to make any changes deemed necessary to QCs' rights of pre-audience [Endnote 29], the QC "front row" placing in court [Endnote 30] and also to court dress [Endnote 31]. Government guidance, or possibly legislation, might be needed to lay out how contractual clauses should be construed in the absence of a body of QCs.

Questions on retaining the rank of QC

Question 7: Do you consider that the rank of QC in its current form benefits the public? What are the reasons for your view?

Question 8: In the light of the arguments set out in this section, do you think the current system should be abolished or changed? What are the reasons for your view?

Question 9: Do you consider that the legal services market is sufficiently sophisticated to allow solicitors to choose appropriate barristers without the need of the QC mark? What are your reasons?

Question 10: If the rank should continue, should it also continue to enjoy its traditional formal privileges of dress, position and precedence?

Question 11: If you consider that the QC rank should be abolished, do you consider that it should be replaced by another form of quality mark (whether it be granted by the state, the professions, an independent body or the proposed Judicial Appointments Commission)? What are your reasons? (see also the sections on state involvement and the key elements of a quality mark)

Questions on the possible effect of its abolition

Question 12: What do you consider would be the impact (positive or negative) on customers of legal services if the rank of QC were to be removed? Do you consider there would be any increase or decrease in legal costs? What are your reasons?

Question 13: What do you consider would be the impact on advocates' fees (QCs and juniors) if the rank were to be removed?

Question 14: For those clients who qualify to use the Bar Council's current Direct Access scheme, what would be the impact (if any) of the removal of the QC rank?

Question 15: What changes, or other kind of scheme, might better help non-specialist solicitors or non-lawyers to choose the right advocate for their case?

Questions on structural implications

Question 16: If a different approach had to be taken in matters where QCs are currently regularly used, what ways would you suggest for identifying practitioners with a suitable level of expertise or case-management skills, and what sources of information would you use?

Question 17: What other implications do you consider there would be, positive or negative, including on price, for the legal services market if the rank of QC were to be removed?

Question 18: What measures are needed to deal with circumstances where the use of a QC has been stipulated as a contractual condition?

The position of existing and aspiring QCs

  1. There is no statutory provision requiring or authorising the appointment of QCs. Appointments are made under the royal prerogative, that is the non-statutory powers of the Sovereign acting on the advice of ministers.

  2. If the Government decided that it was no longer appropriate for the state to provide a guide to the quality of advocacy services through appointment by The Queen to a rank, careful consideration would need to be given to transitional arrangements. There are a number of options, with differing advantages and problems, and the list which follows may well not be exhaustive.

  3. First, all current appointments could be revoked with immediate effect. Before deciding on this option, the Government would of course have to pay the closest attention to the interests of the existing QCs who had worked very hard to win a high professional distinction, and who had personally done nothing which would warrant its removal. It might well be sensible to recognise that it is likely the market would readily recognise the rank of QC was no more than a previous recognition of distinction. But there are competing interests. It is arguable now that the current criteria for appointment disadvantage those lawyers whose work is also of the highest quality, but does not centre on advocacy in the comparatively tiny proportion of cases which end up in court. The more time which elapsed after any decision not to appoint more QCs, the stronger would grow the arguments that retaining the title gave QCs an unfair competitive advantage against those who could have aspired to appointment in due course, and perhaps against those who had been accredited in any other schemes subsequently established by the professions. This option has the advantage of creating a clear level playing field into which other ways of recognising excellence as a practitioner could develop. It may also be said to be the one least likely to confuse potential customers who were not alert to possibly subtle differences between the criteria for appointment as QC and any subsequent schemes.

  4. In assessing these competing factors, the Government would need to consider whether potential consumers would be confused by preserving existing appointments in some form or - on the contrary - would understand that allowing current appointees to retain their award would reflect no more than a previous recognition of distinction which did not provide information on the current ability of those lawyers, or of other lawyers who were now unable to attain that distinction.

  5. Secondly, the current appointments might continue as a purely honorific title, not to be used for professional advantage. This option has the merit of not disturbing the rank's recognition of the current appointees' past achievements, and of significantly reducing any unfair competitive advantages. It could however be difficult to make fully effective - it might for example be necessary for the Bar Council and The Law Society to provide that it would be a breach of professional etiquette to use the superseded award for professional advantage. It might also create a risk that at least some customers would be confused by the importance to be attached to having once been a practising QC and the extent to which the retained title continued to mark excellence, particularly in comparison with any other ways of marking excellence which could develop. Though it must obviously be recognised that the fact of being a QC once would inevitably be known.

  6. Thirdly, the current appointments might continue indefinitely, with or without the current privileges of the appointment. This would give greatest protection to the interests of current QCs. Those who would have aspired to that appointment, and perhaps those who join other, more focussed forms of accreditation subject to renewal or removal might well argue strongly that it would also perpetuate an unfair advantage. That inequality would remain for a long - perhaps an unacceptably long - time. Because it is an appointment for life, the value of appointment as QC would be likely to diminish over time and in the face of newer schemes. And it might seriously confuse many customers, particularly those not used to the current structure of the legal profession, for at least the medium term.

Question 19: If the Government decided that it was no longer appropriate for the state to provide a guide to the quality of advocacy services through appointment by The Queen to a rank, which of the options given for transitional arrangements, (if any) should be preferred, and why?

Question 20: If you do not support these options, what other approach would you suggest and why?

Implications for other UK jurisdictions

  1. Apart from a direct impact in Northern Ireland discussed in paragraph 17, a decision to change radically state involvement in QC appointments in England and Wales would have a direct impact in the Crown Dependencies. The Law Officers of the Crown in the Channel Islands (the Attorneys and Solicitors General of Jersey and Guernsey) and the Attorney General of the Isle of Man (which does not have a Solicitor General) are given the rank of QC, learned in the law of their respective jurisdictions, on appointment. This is done by warrant of the Lord Chancellor in his capacity as Privy Counsellor with particular responsibility for the Crown Dependencies.

  2. The position in Scotland is different; recommendations to The Queen for the appointment of QCs in Scotland are now made by the First Minister of the Scottish Executive. (Annex D gives more details about the procedures in these and other jurisdictions).

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Methods of Award
  1. The responses to In the Public Interest?, and general discussion of the current system for awarding Silk (including comments from consultees in recent application rounds), raise a number of important issues about the scope of the current scheme and how appointments are made. These include:

    • the importance attached to advocacy in current awards;

    • the differences between the quality mark systems for barristers and for solicitors;

    • the degree to which current appointment procedures are understood, and transparent; and

    • the need for clear accountability in quality schemes.

Advocacy

  1. As explained in Annex A, the award of Queen's Counsel recognises excellence in advocacy skills, with a particular emphasis on oral advocacy in court. This has been criticised on a number of grounds. First, in relation to current barristers' practices it has been pointed out (for example, in relation to a number of specialist applicants for Silk) that there are areas of practice, such as tax, trust and some aspects of Chancery law, where litigation is rare. This applies also to many areas of employment law. In these areas there are barristers who are regarded as specialists of the very highest ability. Their work, however, is largely carried out through advice on paper and in conference, or through negotiation with the other side (including, for example, the tax departments), rather than in open court. They are therefore at a considerable disadvantage in applying for Silk.

  2. Similar arguments apply to a number of solicitor applicants for Silk. In substantial commercial litigation, for example, it is now usual in a number of firms of solicitors to bring in leading counsel only at a comparatively late stage in a case. Decisions about the strategy to be followed are made, and much preparation work is done, either by solicitors alone or with junior counsel only; and much negotiation with the other parties and most or all of the important advocacy work in preliminary hearings in the case is handled by the senior solicitors in charge of the litigation. Their appearances in open court remain however comparatively infrequent, since it is exceptional not to bring in leading counsel for the substantive hearings, to get the benefit of specialist persuasive and case management skills. Despite extensive strategic and advocacy experience these solicitors therefore see themselves as at a very considerable disadvantage in applying for Silk.

  3. More generally, it is said that the nature of litigation has changed since the civil justice reforms, and continues to do so. There is a much greater, and court-managed, emphasis on seeking settlement at an early stage. Where it appears that the parties may need assistance in coming to terms, there is increasing use of alternative forms of dispute resolution such as mediation. Arguably, it is now wrong in principle for advocacy in adversarial litigation to play a central role in a legal quality mark.

Different marks for barristers and solicitors

  1. If it is felt that less reliance should be placed on advocacy, there might be scope for reducing the current significant differences in the current quality marks between the two branches of the legal profession. For individual barristers, there is only one such mark, appointment as QC; a single, life-long mark which gives no indication of area of practice (although chambers may seek the BARMARK® [Endnote 32]). The Law Society has, however, set up a range of specialist schemes and panels, the members of which have to show that they do a significant amount of the relevant kind of work, and have to resubmit themselves at regular intervals. There is an obvious argument of principle that it would be easier for customers not used to the structure of the profession for there to be as great a measure of comparability as possible in the quality marks used in the two main branches of the profession.

Current selection procedures

  1. Respondents to In the Public Interest? were critical of a number of aspects of the current QC selection process. The majority of the issues related to:

    • the concentration on advocacy;

    • the consultation process, with concerns that it was not sufficiently focused on those consultees who knew applicants sufficiently well to be able to comment; it did not target a sufficiently representative range of consultees; or it was not sufficiently evidence-based; and

    • the lack of a regular re-appraisal or re-accreditation process.


  2. Others, including the First Commissioner for Judicial Appointments [Endnote 33], also suggest that the current system is still not sufficiently understood, or perceived to be sufficiently transparent.

Cost

  1. Having been continually improved since 1997, the selection process for the appointment of QC is now as rigorous, transparent and fair as it has ever been. The changes made for the 2003 round of applications resulted in a better focussed system, with greatly enhanced scrutiny. The Commission for Judicial Appointments is auditing the 2003 round. The Department has itself already identified possible further areas for improvement. Initial work, however, suggests that an adequately transparent process with a proper audit trail can only be achieved at the cost of a significant increase of the application fee. This may have the discriminatory effect of deterring applicants who found they could not pay such a high fee, but would otherwise have been able to pass successfully through the process.

Appointments not made by the state

  1. It is the Government's provisional view that its continued involvement in the appointment of Queen's Counsel needs strong justification. If the Government concluded that involvement should cease it would be for the branches of the profession to decide whether a replacement is necessary, and if so what form it should take. On competition grounds, however, it would obviously be necessary for any replacement scheme to be administered on transparent and objective grounds, and for any restrictions to be based on qualitative, rather than quantitative, factors.

  2. Respondents to In the Public Interest? also suggested a number of elements as being key to any quality mark scheme, such as:

    • a rigorous selection process (possibly including examination and/or interview);

    • an appeal system for unsuccessful candidates;

    • a quality mark which is of more practical use to customers, perhaps through the identification of an individual's area of expertise (eg "QC (family)"); and

    • regular re-appraisal or re-accreditation.


  3. A new system of recognising high quality in the provision of legal services would obviously be a major change in the market for legal services, and a new development of the role of the professions, whether the new marks were run directly by the professional bodies or by some other organisation.

  4. The importance for the public of maintaining general and informed access to high quality legal services, raises the question of whether the Government should continue to be involved by setting out for any branch of the profession broad standards and objectives which quality mark schemes should be expected to meet.

Question 21: Should the quality mark be granted only after, for example, examination, or interview? Why?

Question 22: Should it include regular re-appraisal or re-accreditation? How might this be achieved?

Question 23: Should it include appeals and complaints mechanisms? How would you envisage them working?

Question 24: Do you think some new form of quality mark is desirable? By whom should it be run, and how? What would be the impact on the market for legal services?

Question 25: If some form of quality mark is necessary, should it continue to focus primarily on advocacy?

Question 26: If you consider that any criteria should reflect a broader range of skills and experience, how do you think this might be achieved? What other skills do you consider should be recognised and tested?

Question 27: If you consider that the criteria should focus on advocacy, should there also be a parallel mark for solicitors and barristers who undertake the many other types of legal work (including the issuing of proceedings, the preparation of instructions for advocates, and many matters which do not usually involve the court, such as conveyancing)? What differences would you envisage there being between the two schemes?

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Annex A: Criteria for Appointment in England and Wales

The following is taken from the 2003 Guide for Applicants [Endnote 34].

"The Lord Chancellor will only recommend for appointment as Queen's Counsel those practitioners who display the following attributes to a degree which marks them out as leaders of the profession, that is to a standard comparable with those already appointed Queen's Counsel in the same or analogous practice type:

Advocacy:

Legal ability and practice:

Professional qualities:

The Lord Chancellor will recommend for appointment those who appear to him most fully to satisfy the above criteria, regardless of gender, ethnic origin, sexual orientation, marital status, political affiliation, religion, disability or professional background.

Appointment as Queen's Counsel is essentially a mark of distinction in advocacy. Therefore, the Lord Chancellor will have regard principally to the qualities displayed by candidates in their practice before the higher courts of England and Wales or the European Court of Justice or the International Court of Justice or the European Court of Human Rights or other significant fora (such as planning enquiries, employment tribunals, financial services tribunals, arbitral tribunals, and the Lands Tribunal). In this context advocacy is not confined to oral advocacy, but also includes, for example, skeleton arguments. Supportive evidence of excellence in advocacy in other fora, such as lower courts, will be taken into account.

The Lord Chancellor also takes into account any evidence relevant to the criteria available from that part of an advocate's practice that is not concerned with advocacy.

Period in practice
The Lord Chancellor expects applicants to have sufficient professional experience to be credible candidates for appointment. Applications will be accepted from candidates with 10 years, or more, qualified service in the legal profession but in practice successful candidates will usually have between 15 and 20 years' experience in the profession.

As appointment as Queen's Counsel is essentially a mark of distinction in advocacy, the Lord Chancellor also expects that an applicant will have practised as an advocate in the higher courts or similar for a long enough period to have developed the ability and experience to justify the appointment. In practice, successful candidates will usually have at least 5 years' advocacy experience in the higher courts or similar fora.

Age and seniority
There are no age limits and each application is considered on its merits without regard to age or seniority.

Fees
Although the Lord Chancellor regards the level of an applicant's fees as an indication of the size of his or her practice, it is not his policy to recommend appointment as Queen's Counsel solely to the highest earning applicants nor is there a minimum threshold of earnings beneath which an application is ruled out. Provided that it is clear, from the level of fees and from the other information provided on the application form, that an applicant has an active practice, it is the evidence of his or her ability and the strength of support which will determine the decision.

Circuits, chambers and firms
Each application is considered on the established merits of the individual alone. No account is taken of the interests of the applicant's circuit, practice type, chambers or firm, in considering applications."

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Annex B: 2003 Selection Process in England and Wales

Application
Applications are currently invited annually through an advertisement and through the Departmental web site. The advertisement has for many years usually appeared in early September, and the list of successful applicants is published the following Maundy Thursday.

Consultation
Much of the Queen's Counsel exercise is conducted by means of written consultation. Written views are automatically sought from the judiciary, specialist legal associations and other senior practitioners. Applicants are now invited to nominate up to six names from the list of automatic consultees who are best placed to provide comments against the criteria. They are also requested to nominate a further six consultees of their own choosing.

Meetings are held with the Heads of Supreme Court Divisions; the judges in charge of the Commercial Court, the Administrative Court and the Technology and Construction Court; the Presiding Judges; Family Division Liaison Judges; Circuit Leaders and the Chairman and Vice-Chairman of the Bar Council. Meetings are occasionally also held to clarify a consultee's views or, where a consultee has consulted others, the degree of consensus.

Sift
Following the consultation period, Departmental officials conduct a sift of all applicants, to establish how far the evidence demonstrates that they meet the criteria for appointment to the required standard. All marks and comments are given individual consideration. No single comment or mark can, in itself, cause an application to fail.

The sift is now a three-stage process. First, Departmental officials working independently of each other prepare a written assessment of the evidence. The second stage consists of two panels, each comprising a senior official and a lay member. The panels review the applications and classify them according to the strength of the evidence that the applicant meets the criteria for appointment. The third stage is moderation by Legal and Judicial Services Group's most senior officials to ensure a consistent standard of decision making and recording.

The results are presented to the Lord Chancellor in the form of a Long List. This list is divided into categories relating to circuit or practice type. It now summarises the evidence on every applicant who appears to meet the criteria to the required standard, dividing them into four groups according to the strength of the evidence. The Long List also includes the name of any other applicant whose fees are in the upper quartile for their particular practice type or circuit. The Lord Chancellor is provided with the detailed comments received for each applicant who appears in the Long List. He is provided with the names of, and the full comments received on, all ethnic minority, female, and solicitor applicants and those who have a specialist practice on provincial circuits. He also receives a separate note of those not included in the Long List and a brief summary of the reasons. This material enables the Lord Chancellor and those he consults to check the validity of the decision to exclude any of the applicants in the above categories from the Long List.

Appointment
The Lord Chancellor personally considers the Long List and additional detailed material. He does not confine his consideration to the Long List alone and bases his final recommendations on all the material available to him. Following his initial consideration, he holds separate meetings to discuss the applications with the Law Officers and the Heads of Supreme Court Divisions and their senior judicial colleagues, who also receive copies of the same material. The Lord Chancellor then decides which applicants to recommend to The Queen for appointment.

There is no limit to the numbers of new Queen's Counsel who may be appointed in a particular year, nor is there a quota of appointments to be filled. The Lord Chancellor makes his recommendations for appointment on the basis of the calibre of each individual applicant, as reflected in the views given in that year's round. All applicants who fulfil the published criteria to the necessary high standard will be recommended for appointment.

Feedback
Unsuccessful applicants are encouraged to discuss the outcome of their application with a senior member of Legal and Judicial Services Group. Feedback is given in confidence and usually by telephone. The aim of the feedback discussion is to help applicants to understand why they were not appointed by reference to the degree of support received and the tenor of the views obtained. They are given a full account of the comments received, edited only to the extent necessary to preserve the confidentiality of the source.

Complaints
The Department hopes to explore any issues of concern to the applicant during the feedback process. If there remain unresolved problems, applicants are encouraged to write to the Director General, Legal and Judicial Services Group or the Lord Chancellor.

If the applicant remains dissatisfied with the way his or her application has been considered, he or she may lodge a complaint with the Commissioner for Judicial Appointments, who will investigate complaints of discrimination, unfairness or maladministration in the way the procedures have been applied.

Attorney or Solicitor General
By convention, should someone who is not in Silk already be appointed as Attorney or Solicitor General, he or she is immediately appointed as QC outside of the usual annual round.

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Annex C: QC System in Northern Ireland

The power of appointing Queen's Counsel in Northern Ireland is exercised by The Queen acting on the recommendation of the Lord Chancellor who is, in turn, advised by the Lord Chief Justice of Northern Ireland.

The procedure is:

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Annex D: Summary of Position in Other Jurisdictions

Queen's Counsel or equivalent schemes in other jurisdictions

Scotland
The Lord Justice-General makes recommendations to the First Minister of the Scottish Executive of persons for appointment as Queen's Counsel in Scotland. The First Minister puts forward the names to The Queen for approval of their appointment. (The Secretary of State for Scotland plays no part in the process of appointment and nor does the Lord Chancellor.)

The process is:

  1. The Lord Justice-General invites applications from qualified advocates and solicitor advocates in Scotland. This exercise is conducted once each year.
  2. The Lord Justice-General consults the Lord Advocate, the Senators of the College of Justice, the Dean of the Faculty of Advocates, and the Law Society of Scotland.
  3. The Lord Justice-General submits a list of recommendations to the First Minister. There is no merit order involved. All are equally recommended.
  4. There are no further meetings after that stage.
  5. The First Minister puts forward the list of names to The Queen for appointment. There is no appointment ceremony in Scotland. A copy of the letters patent is issued to each successful candidate.

Isle of Man & Channel Islands
The Law Officers of the Crown in the Channel Islands (the Attorneys and Solicitors General of Jersey and Guernsey) and the Attorney General of the Isle of Man (which does not have a Solicitor General) are given the rank of QC, learned in the law of their respective jurisdictions, on appointment. This is done by warrant of the Lord Chancellor in his capacity as the Privy Counsellor with particular responsibility for the Crown Dependencies.

Overseas Territories
Appointments to the rank of Queen's Counsel are made in the Overseas Territories, but not necessarily on an annual basis. Since the year 2000, around 12 Queen's Counsel have been appointed. Appointments are made by the Foreign Secretary with notification of the award being sent from the Governor of the relevant Territory.

Applications for these QC appointments are considered on the basis of guidelines agreed in 1986 between the Foreign and Commonwealth Office and the then Lord Chancellor's Department.

The guidelines state:

Canada (legal system based on English common law)
In all provinces, a committee reviews eligibility of QC candidates and determines a list of recommended appointments. In most provinces the committees comprise representation from the government, the judiciary and the Law Society. The Minister of Justice is not bound by the committee's recommendations and can appoint whomever he/she wants.

New Zealand (legal system based on English common law)
Appointments are currently made by the Governor-General, on the advice of the Attorney-General and Chief Justice.

Following a period of consultation on the QC system, the New Zealand Government approved in March 2002:

Australia (legal system based on English common law)
The regulation of Queen's Counsel or Senior Counsel is handled at state and territory level within Australia.

In the Northern Territory, South Australia, Tasmania, Victoria and Western Australia, appointments are made as Queen's Counsel or as Senior Counsel. In the Northern Territory, Queen's Counsel are appointed by the Administrator of the Northern Territory of Australia, on recommendations from the Chief Justice and the Attorney General. In South Australia, Queen's Counsel are appointed by the Governor in Council on the recommendation of the Chief Justice. In Tasmania, Senior Counsel are appointed by the Chief Justice of the Supreme Court of Tasmania. In Victoria, Senior Counsel are appointed by the Governor in Council on the recommendation of the Attorney General. In Western Australia, Senior Counsel are appointed by the Chief Justice of Western Australia, having the support of the Supreme Court. In both the Australian Capital Territory and New South Wales (NSW), although the state government retains the right to appoint Queen's Counsel, it has decided to make no further use of it. Legislation has been passed to allow the Law Society and Bar Association to appoint Senior Counsel in the way they see fit. In NSW, appointments to Senior Counsel are made by the President of the NSW Bar Association.

Nigeria (legal system based on English common law, Islamic Shariah law (only in some northern states) and traditional law)
Before independence, The Queen appointed qualified legal practitioners to the rank of Queen's Counsel. The rank was abolished in 1964 after Nigeria became a republic, but a replacement was considered necessary, and the grade of Senior Advocate of Nigeria was established by the Legal Practitioners Act 1975.

The Legal Practitioners Privileges Committee selects Senior Advocates of Nigeria. It consists of the Chief Justice of the Federation, who is the chairman, the Attorney General of the Federation, one Justice of the Supreme Court, the President of the Court of Appeal, five Chief Judges of the states, the Chief Judge of the Federal High Court and five legal practitioners who are themselves Senior Advocates of Nigeria.

Barbados (legal system based on English common law)
In Barbados, the rank of Queen's Counsel (which was suspended between 1975 and 1980) is stated to be the "official recognition of seniority coupled with high personal standing and professional distinction in the Legal profession".

Applicants must be an attorney-at-law of at least 10 years' standing and of irreproachable conduct and professional eminence. Applicants may either write directly to the Chief Justice or be nominated by a Queen's Counsel. The Chief Justice then consults the other judges of the Supreme Court, the Barbados Bar Association and Attorney-General. The Chief Justice forwards his recommendations to the Prime Minister, who advises the Governor-General to make the appointment.

South Africa (legal system based on Roman-Dutch law and English common law)
Screening and selection for Silks is done by the Bar Council. In 1992 the Council published Criteria and procedures in regard to granting of Silk. The application process is:

Hong Kong (legal system based on English common law)
Previously Queen's Counsel appointments were made by the Governor on the recommendation of the Chief Justice. Since 1997, the appointments (now called Senior Counsel) have been made under statute. The statute lays down the eligibility requirements and confers on the Chief Justice power to make the appointments after consultation with the Chairman of the Bar Council and the President of the Law Society.

Other countries
In some countries such as the United States of America (legal system based on English common law), the legal profession has no mark of distinction or quality comparable to the QC mark.

This also appears to be the case in countries where the legal system is based on civil law as opposed to common law. For example, France, Germany and Sweden all state they have no QC equivalent in their legal professions.

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Annex E: Summary of Quality Mark Approach taken by Other Professions

Appraisal and revalidation in the medical profession
The Department of Health is introducing a corporate appraisal system for all NHS staff in England [Endnote 36]as part of the Government's commitment to delivering the quality agenda. Annual appraisal for NHS consultants was launched in April 2001 and for GPs in April 2002. A joint appraisal system for clinical academics with honorary NHS contracts was launched in August 2002. Work is under way to roll out schemes for other groups of NHS doctors, including doctors in training, public health doctors, and locum doctors. Appraisal is a professional process to help doctors consolidate and improve on good performance, aiming towards excellence. Appraisal for doctors will be carried out by another doctor on the medical register. The Chief Executive of NHS Trusts is accountable for the appraisal process. The appraisal system is constructed around the General Medical Council's (GMC) publication Good Medical Practice, so that the same evidence can be used for both appraisal and revalidation of the GMC licence to practise. Doctors working outside the NHS can also choose an independent route to revalidation which involves submitting evidence that they have kept their practice up-to-date directly to the GMC.

The standards for doctors' clinical work are set by the individual Royal Colleges who also set the exams in respect of their particular specialty, for example, surgeons and psychiatrists.

The GMC is introducing licences to practise for doctors which will be subject to revalidation every 5 years, based on satisfactory evidence that the doctor has kept up to date and is fit to practise. From 2004 doctors without a licence to practise will not be allowed to treat patients or prescribe for them.

Continuing Professional Development in the NHS
Continuing Professional Development (CPD) is in support of the delivery of high quality care and clinical governance. It is a life long learning scheme for all individuals and teams which meets the needs of patients, delivers the health outcomes and healthcare priorities of the NHS, and enables professionals to expand and fulfil their potential. Health professionals look to the clinical guidelines produced by the National Institute for Clinical Effectiveness (NICE) as a focus for CPD activities and ensure that they align CPD activities with the audit methodologies linked to NICE clinical guidelines and standards.

Basic Skills Agency (Department for Education and Skills)
The Primary and Secondary Quality Mark of the Basic Skills Agency (BSA) is based on a close partnership with local education authorities (LEAs) and schools. The assessment and recommendation for all Primary Quality Mark and some Secondary Quality Mark awards is the responsibility of LEAs. The BSA role is to make sure that the assessments carried out are consistent between and across LEAs throughout England and Wales.

There are three quality marks:

The Primary Quality Mark is awarded for 3 years (during this time regular monitoring visits from the LEA take place). After 3 years the Quality Mark is renewed only if the school can demonstrate that it has made progress in basic skills.

Supply Teachers Quality Mark (Department for Education and Skills)
This Quality Mark was introduced to improve the standards of supply teacher agencies for both teachers and the schools which use them. The mark is being operated by the Recruitment and Employment Confederation and sets the minimum standards for agencies and local education authorities to reach in areas such as the way they recruit and interview staff, the way they check and manage their staff and the way they stay at the forefront of changes in the teaching sector.

Continuing Professional Development for Architects (Royal Institute of British Architects)
RIBA's Continuing Professional Development (CPD) programme is designed to keep its members and all other construction professionals up to date with new ideas, techniques, and regulations. It is mandatory for every RIBA corporate member to comply with the programme and checks are made of RIBA Registered Practices, on a sample basis, to ensure compliance.

Tradesmen Quality Mark scheme (Department of Trade and Industry)
This Quality Mark is a Government-backed scheme designed to offer peace of mind to the private householder looking for a reputable builder or tradesman to carry out repairs and improvements to their home. It also provides reputable builders and tradesmen with a scheme that allows them to demonstrate their commitment to quality through a single recognisable brand, and offers a range of business benefits to members.

Quality Mark tradesmen are assessed for workmanship skills, proper insurance cover, management practices and financial probity by independent certification bodies, licensed by the DTI, based on a simple site-based assessment. Quality Mark tradesmen follow a code of practice governing relations with their customers. The Quality Mark is backed by an effective warranty and independent complaints system to address any complaint about the quality of workmanship or the conduct of a firm. Its audit trail can also help Quality Mark firms pursue bad debts.

Following successful pilots in Birmingham and Somerset the Quality Mark is being rolled out across England and Wales and, subject to approval by ministers of the business plan, it is expected that QM will be launched nationally to the public in early 2004 [Endnote 37].

Pensions Protection Investments Accreditation Board (PPIAB)
The PPIAB is the assessment and accreditation organisation for the Raising Standards Quality Mark Scheme. Created in 2000, it is independent of the life and pensions industry and the Government. It is a not-for-profit organisation, funded by the fees that brands pay, before accreditation, and then for renewal of accreditation each year. A "brand" is the name under which companies sell their products.

The Raising Standards Quality Mark Scheme has eight standards. Brands are accredited under the Scheme if they meet all of these standards for all their products that fall within the Scheme.

Community Legal Service Quality Mark (Legal Services Commission)
The Quality Mark is part of the Community Legal Service (CLS), a major Government initiative launched in April 2000. The aim of the CLS is to improve public access to quality information, advice and legal services through local networks of services supported by co-ordinated funding and based on an assessment of local needs. The Community Legal Service consists of members with a Quality Mark for the level of service they provide. The Quality Mark is the quality standard that underpins all CLS services, so that members of the public who need legal information, advice and other help can rely on receiving a quality assured service. To be awarded the Quality Mark and to be able to display the Quality Mark logo, organisations need to demonstrate that they meet the standard required for the type of service being delivered.

The Quality Mark demonstrates commitment to providing a quality service. The standards have been developed specifically to assure quality legal service provision. A regional Directory of Quality Mark holders is widely available to the public and to other service members. The Quality Mark may give an advantage when service providers are applying for funding. Service providers have an independently assessed quality standard that shows they provide a well-managed service.

There are two levels of recognition for bodies which help in access to information. That for self-help information is for organisations such as libraries that rely on the public accessing information themselves via the CLS Directory and leaflet. To obtain the Quality Mark these services need to ensure that information, in the CLS/CDS Directory and other materials, is available and kept up to date. The assisted information mark is for organisations such as Citizens' Advice Bureaux that have a dedicated information service. Whilst their staff help clients access information, no advice needs to be provided in order to obtain the Quality Mark at the information level. These services need to demonstrate a wider range of requirements, and need to show, for example:

There are two marks for bodies which directly provide help:

  1. General Help level:
    This standard is for organisations that deal with clients' problems by offering information or explaining options available, and who provide basic assistance such as form filling.

  2. Specialist Help:
    This level is for solicitors and not for profit agencies who do civil and criminal work.

To obtain the Quality Mark at the General Help and Specialist Help levels, services need to demonstrate that they have the following:

Quality Mark for the Bar
Quality Mark for the Bar, published in September 2002, is a new specialist level standard designed specifically for use in Chambers and drawing significantly on existing quality standards, especially the Bar Council's Code of Conduct, BARMARK® and the Specialist Quality Mark. In common with the development process for all Quality Mark standards, the Legal Services Commission's (LSC) objective has been to work in partnership with the Bar to ensure that the final standard commands wide support amongst the profession and its clients.

Chambers may apply for Quality Mark for the Bar whether or not they conduct publicly funded work. Chambers who hold the Bar Council Quality standard 'BARMARK®' will automatically progress to the Quality Mark for the Bar, upon undertaking to meet the additional requirements within 12 months of application.

Continuing Professional Development Programme for barristers
The Bar Council introduced the New Practitioners' Programme on 1 October 1997 for barristers in their first three years of independent practice. This was extended on 1 October 1998 to barristers entering employed practice. The Bar Council has also introduced a continuing professional development scheme for established practitioners. This was introduced from 1 January 2001 for all barristers who have completed the New Practitioners' Programme.

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Annex F: Comments received from the Director General of Fair Trading in the report Competition in Professions

In the report Competition in Professionspdf document, published in March 2001, the Director General of Fair Trading questioned the value of the Queen's Counsel award to consumers, raising the following specific issues with regard to the system:

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Annex G: Detailed list of consultees

Consultation on England and Wales

Consultation on Northern Ireland

Please note: This list is not exhaustive.

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Annex H: Summary Questionnaire

This paper emphasises that the Government is keen to establish whether the QC system provides a benefit and/or serves a purpose for users of legal services. Below is a summary of the questions set out in the consultation paper to which we would specifically like answers. However, when replying, please feel free to make any additional comments or raise other points which you consider relevant.

As noted earlier in "How to Respond", the Department may wish to publish responses to this consultation document in due course. If you wish your response or name to be kept confidential please indicate by ticking a box as noted below:

Response to be kept confidential

Name to be kept confidential

Question 1: Do you consider it appropriate for the state to be awarding a promotional rank in a profession? What are your reasons?

Question 2: Do you consider that the public interest would suffer if the Government were not directly responsible for the selection process for any quality mark scheme? What are your reasons?

Question 3: If you do not consider that the state should continue to be involved in the award of QC, can a change to the current constitutional arrangements which prevent The Queen from acting other than on the advice of ministers be justified? What form should that change take (including adequate measures for accountability to Parliament)? What are your reasons?

Question 4: Can an arrangement under which the relevant minister makes recommendations, having been guided by another body, be justified? To what extent should the minister be bound to accept the advice of that body? What form should that arrangement take (including adequate measures for accountability to Parliament)? What are your reasons?

Question 5: If you support the option in Question 4, as the Government will be establishing a judicial appointments commission, should this be the advising body? What are your reasons?

Question 6: If it were to be decided that the rank of QC should be discontinued, do you consider that the Government should have an ongoing role in overseeing the framework of any new quality mark scheme that the Bar Council and/or the Law Society (or any other body) might decide to introduce, ? What are your reasons?

Question 7: Do you consider that the rank of QC in its current form benefits the public? What are the reasons for your view?

Question 8: In the light of the arguments set out in this section, do you think the current system should be abolished or changed? What are the reasons for your view?

Question 9: Do you consider that the legal services market is sufficiently sophisticated to allow solicitors to choose appropriate barristers without the need of the QC mark? What are your reasons?

Question 10: If the rank should continue, should it also continue to enjoy its traditional formal privileges of dress, position and precedence?

Question 11: If you consider that the QC rank should be abolished, do you consider that it should be replaced by another form of quality mark (whether it be granted by the state, the professions, an independent body or the proposed Judicial Appointments Commission)? What are your reasons? (see also the sections on state involvement and the key elements of a quality mark)

Question 12: What do you consider would be the impact (positive or negative) on customers of legal services if the rank of QC were to be removed? Do you consider there would be any increase or decrease in legal costs? What are your reasons?

Question 13: What do you consider would be the impact on advocates' fees (QCs and juniors) if the rank were to be removed?

Question 14: For those clients who qualify to use the Bar Council's current Direct Access scheme, what would be the impact (if any) of the removal of the QC rank?

Question 15: What changes, or other kind of scheme, might better help non-specialist solicitors or non-lawyers to choose the right advocate for their case?

Question 16: If a different approach had to be taken in matters where QCs are currently regularly used, what ways would you suggest for identifying practitioners with a suitable level of expertise or case-management skills, and what sources of information would you use?

Question 17: What other implications do you consider there would be, positive or negative, including on price, for the legal services market if the rank of QC were to be removed?

Question 18: What measures are needed to deal with circumstances where the use of a QC has been stipulated as a contractual condition?

Question 19: If the Government decided that it was no longer appropriate for the state to provide a guide to the quality of advocacy services through appointment by The Queen to a rank, which of the options given for transitional arrangements, referred to in paragraphs 68 to 71, (if any) should be preferred, and why?

Question 20: If you do not support these options, what other approach would you suggest and why?

Question 21: Should the quality mark be granted only after, for example, examination, or interview? Why?

Question 22: Should it include regular re-appraisal or re-accreditation? How might this be achieved?

Question 23: Should it include appeals and complaints mechanisms? How would you envisage them working?

Question 24: Do you think some new form of quality mark is desirable? By whom should it be run, and how? What would be the impact on the market for legal services?

Question 25: If some form of quality mark is necessary, should it continue to focus primarily on advocacy?

Question 26: If you consider that any criteria should reflect a broader range of skills and experience, how do you think this might be achieved? What other skills do you consider should be recognised and tested?

Question 27: If you consider that the criteria should focus on advocacy, should there also be a parallel mark for solicitors and barristers who undertake the many other types of legal work (including the issuing of proceedings, the preparation of instructions for advocates, and many matters which do not usually involve the court, such as conveyancing)? What differences would you envisage there being between the two schemes?

Name:

Organisation:

Address:

If you a representative group please give a summary of the people and organisations you represent.

Please send (preferably be e-mail) your completed response by 7 November 2003 to:

England & Wales

Queen's Counsel Branch
Courts Policy Division, Legal & Judicial Services Group
Department for Constitutional Affairs
2nd Floor
Selborne House
54-60 Victoria Street
London SW1E 6QW

Tel: 020 7210 8984
Fax: 020 7210 8925
Email: queenscounsel judicialgroup

Northern Ireland

The Departmental Consultation Co-ordinator
The Information Centre
Northern Ireland Court Service
Windsor House
9-15 Bedford Street
Belfast BT2 7LT

Tel: 028 9032 8594
Fax: 028 9041 2390
Email: informationcentre@courtsni.gov.uk

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Annex I: Consultation co-ordinator & general principles of consultation

Consultation Co-ordinator

If you have any complaints or comments about the consultation process, you should contact the Department for Constitutional Affairs' consultation co-ordinator, Laurence Fiddler, on 020 7210 8516 or email him at Laurence Fiddler. Alternatively, you may wish to write to the address below:

Laurence Fiddler
Consultation Co-ordinator,
Room 8.23
Department for Constitutional Affairs
Selborne House
54-60 Victoria Street
London SW1E 6QW

General principles of consultation

The criteria in the Code of Practice on Written Consultation issued by the Cabinet Office are as follows:

  1. Timing of consultation should be built into the planning process for a policy or service from the start, so that it has the best prospect of improving the proposals concerned, and so that sufficient time is left for it at each stage.

  2. It should be clear who is being consulted, about what questions, in what timescale and for what purpose.

  3. A consultation document should be as simple and concise as possible. It should include a summary, in two pages at most, of the main questions it seeks views on. It should make it as easy as possible for readers to respond, make contact or complain.

  4. Documents should be made widely available, with the fullest use of electronic means (though not to the exclusion of others), and effectively drawn to the attention of all interested groups and individuals.

  5. Sufficient time should be allowed for considered responses from all groups with an interest. Twelve weeks should be the standard minimum period for a consultation.

  6. Responses should be carefully and open-mindedly analysed, and the results made widely available, with an account of the views expressed, and reasons for decisions finally taken.

  7. Departments should monitor and evaluate consultations, designating a consultation co-ordinator who will ensure the lessons are disseminated.

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Endnotes:

  1. The higher courts are the Crown Court, the High Court (divided into Queen's Bench Division, Family Division and Chancery Division), the Court of Appeal and the House of Lords. This distinguishes them from the magistrates' courts, the county courts and many tribunals in which solicitors have always been able to appear.

  2. Who automatically become King's Counsel if the Crown passes to a man.

  3. On Taking Silk: 1594 to 1996 by Master Baker, The Inner Temple Yearbook 1996-1997, 1996, page 43

  4. LCD Press Notice 204/95, "Lord Chancellor announces that solicitor advocates may apply for Silk", 2 August 1995

  5. The fee for the 2003 Silk round was £720. Appointment of Queen's Counsel 2003: Guide for Applicants, Part 6, Paying the Application Fee, pages 17-18 www.lcd.gov.uk/judicial/appointments/silks2003/guideapp.htm

  6. Appointment of Queen's Counsel 2003: Guide for Applicants www.lcd.gov.uk/judicial/appointments/silks2003/guideapp.htm

  7. The Director General of Fair Trading in March 2001 published a report Competition in the Professions which made criticisms of the Silk system. In response, in July 2002, the Government published a consultation paper entitled In the Public Interest? seeking views on the perceived benefits and potential drawbacks of the QC system. The consultation page and are available at, www.lcd.gov.uk/consult/general/oftrept.htm.

  8. The In the Public Interest? response from "the Judiciary" was prepared by a working group, comprising representatives of the Court of Appeal, the three Divisions of the High Court, Circuit Judges and District Judges. It was endorsed by the Heads of Division.

  9. Criminal Defence Service (General) (No.2) Regulations 2001, regulation 14

  10. Detailed response, not quoted directly in summary responses to In the Public Interest?

  11. The graduated fee scheme provides for a range of base fees for different pieces of work. Fees are set according to the nature of the proceedings, the work to be done, the seniority of counsel and the venue.

  12. Code of Conduct of the Bar of England and Wales, 7th edition, 31 July 2000, Part VI, Acceptance and Return of Instructions, paragraph 605.

  13. See [paragraphs 52-54] for further references to direct access and the Bar Direct scheme. Although the Bar Council has proposed a further extension to the scheme, this will still include only a small proportion of those people who need advocacy services, including all those whose cases involve any significant preparation work they are not able to undertake themselves.

  14. Competition in Professions; paragraph 46

  15. Summary of responses to In the Public Interest? May 2003, paragraph 293

  16. Summary of responses to In the Public Interest? May 2003, paragraph 246

  17. Treasury Junior counsel are experienced advocates who represent the Government and deal with the more serious cases.

  18. Similar issues arise in relation to judicial appointments, and the Department's consultation paper on the establishment of a Judicial Appointment Commission discusses whether the Commission should be an appointing or a recommending body ([paragraphs 35-39]).

  19. For example, firms of solicitors, the Law Management section of The Law Society, the Gloucestershire and Wiltshire Incorporated Law Society and the Association of Personal Injury Lawyers

  20. "Appointment to the Judiciary and to Silk" - The Law Society's submission in 1999 to the enquiry by Sir Leonard Peach (An Independent Scrutiny of the Appointment Processes of Judges and Queen's Counsel in England and Wales - A Report to the Lord Chancellor by Sir Leonard Peach - December 1999)

  21. Detailed response, not quoted directly in summary responses to In the Public Interest?

  22. Detailed response, not quoted directly in summary responses to In the Public Interest?

  23. A Legal Services Commission is to be established in Northern Ireland in November 2003.

  24. Solicitors need to have a contract with the Legal Services Commission (LSC) in order to provide publicly funded defence services. The contract includes strict quality assurance requirements against which performance is audited regularly, to ensure that clients receive a high quality service.

  25. Electricity Supply Pension Scheme (Transfer Date Amendments) Regulations 1990, Schedule, Part II, para 6, Provision for a QC to be appointed as an arbitrator

  26. It is the practice to offer some Recorder Queen's Counsel appointments to preside over the Restricted Patients Panel of the Mental Health Review Tribunal, because they will have significant criminal judicial experience.

  27. Incumbents (Vacation of Benefices) Measure 1977

  28. Electricity Supply Pension Scheme; Civil Aviation (Investigation of Accidents)(Isle of Man) regulations 1974, Section 16(2) - provides for QC to be Commissioner of Public Enquiry.

  29. The precedence rules are summarised at paragraph 434 of Halsburys Laws Vol 3 (1).

  30. The basis of pre-audience and place in court is a formal convention and a matter of discretion for the Judicial Bench and the etiquette of the legal profession.

  31. Since 1994 there have been three Practice Directions on Court Dress: Practice Direction (Court Dress) - 11 July 1994, Practice Direction (Court Dress) (No 2) - 11 April 1995, Practice Direction (Court Dress) (No 3) - 25 November 1998

  32. BARMARK® was launched on 5 July 1999. It is the Bar Council's scheme designed to recognise good practice management within chambers. The scheme is voluntary and is independently assessed by the British Standards Institution, with the final decision on awards taken by the Bar Council's BARMARK® panel.

  33. The Commission for Judicial Appointments, Annual Report 2002, www.lcd.gov.uk/judicial/judcomrep02.pdf pdf document

  34. Appointment of Queen's Counsel 2003, Guide for Applicants, Part 3, Criteria for Appointment, pages 3-5

  35. Section 42 of the Access to Justice Act 1999 gives statutory force to the existing professional rules which make it clear that the overriding duties of advocates and litigators are: their duty to the Court, to act with independence in the interests of justice; and their duty to comply with their professional bodies' rules of conduct.

  36. The Scottish, Welsh and Northern Ireland administrations are also introducing similar arrangements for appraisal.

  37. For further information phone the call centre on 0845 300 8040 or access the website at www.qualitymark.org.uk

 

 

 

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