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Queen's Counsel (postnominal QC), during the reign of a male Sovereign known as King's Counsel (KC), are barristers or, in Scotland, advocates appointed by patent to be one of "Her Majesty's Counsel learned in the law". They do not constitute a separate order or degree of lawyers. They are, however, more than merely a professional rank, as their status is conferred by the Crown and recognised by the courts.
Queen's Counsel have the privilege of sitting within the Bar of court, and wear silk gowns of a special design (hence the informal title Silks). See Court dress.
The Attorney-General, Solicitor-General, and King's Sergeants were King's Counsel in Ordinary. The first Queen's Counsel "Extraordinary" was Sir Francis Bacon, who was given a patent giving him precedence at the Bar in 1597, and formally styled King's Counsel in 1603 (W. S. Holdsworth, History of English Law (1938) vi 473-4; Patent Rolls, 2 Jac I p 12 m 15).
The obsolete rank of Sergeant-at-Law was formerly more senior, though it was overtaken formally in the 1670s, and professionally in the course of the late eighteenth century by the newer rank. The Attorney-General and Solicitor-General, had similarly succeeded the King's Serjeants as leaders of the Bar in Tudor times, though not technically senior until 1623 (except for the two senior King's Serjeants) and 1813 respectively (JH Baker, "The English Legal Profession 1450-1550" in Wilfred Prest (ed), Lawyers in Early Modern Europe and America (1981), 20). But the Queen's Counsel only emerged into eminence and integrity in the early 1830s, prior to when they were relatively few in number. It became the standard means of recognising that a barrister was a senior member of the profession, and the numbers multiplied accordingly (Daniel Duman, The English and Colonial Bars in the Nineteenth Century (1983) 35.) It became of greater professional importance to become a QC, and the serjeants gradually declined. The QCs inherited not merely the prestige of the serjeants, but enjoyed priority before the courts.
Queen's Counsel and serjeants were prohibited, at least from the mid-nineteenth century, from doing chamber work. They were briefed together with a junior barrister, and they had to have chambers in London (Duman 98-99). Till 1920 in England and Wales they had to have a licence to appear in criminal cases for the defence. On appointment, QCs renounced the preparation of written pleadings and other chamber practices.
Queen's Counsel were traditionally selected from barristers, rather than from lawyers in general. This was because they were counsel appointed to conduct court work on behalf of the Crown. Although the limitations upon private employment was gradually relaxed, they continued to be selected from barristers, who had the sole right of audience to the higher courts. However, in 1994 solicitors of England and Wales were entitled to be admitted to the upper courts. Some 275 were so practising in 1995. In 1995 these solicitors alone became entitled to apply for appointment as Queen's Counsel. The first such was appointed March 1997 (On 27 March 1997, of the 68 new QCs announced, two were solicitors. These were Arthur Marriott (53), partner of the London office of the American law firm of Wilmer Cutler and Pickering, and Dr Lawrence Collins (55), a partner of the City law firm of Herbert Smith.).
The appointment of Queen's Counsel has been suspended and there is a consultation under way in England as the Government intends to reform the position of Queen's Counsel. In November 2004, it was announced that the title of Queen's Counsel would be retained but that future appointees would not be chosen by the government but by a nine-member panel, chaired by a lay person, which will include two barristers, two solicitors, one retired judge and three non-lawyers.
In Scotland, where the independent Bar is organised as the Faculty of Advocates and its members known not as barristers but as advocates, a separate roll of Queen's Counsel was created only in 1897, with the first appointed 1898. Before that year, the only QCs appointed in Scotland were the Lord Advocate and the Dean of the Faculty of Advocates. There are now about one hundred QCs in practice in Scotland, about one-fifth of the practising Bar. They are in practice appointed on the recommendation of the Lord President of the Court of Session. In the 1990s, it became possible for solicitors with rights of audience in the Court of Session or High Court of Justiciary to apply for appointment, and two or three have done so.
History: Hong Kong
Queen's Counsel was refereed as 御用大律師 in Hong Kong Cantonese. The rank has been replaced by Senior Counsel (資深大律師) since the handover to China in 1997. Some SCs, who were also called to the Bar of England and Wales, might keep using QC in their title as well.
In Commonwealth countries that have become republics, the office of Queen's Counsel has generally been retained, though with a new style becoming Senior Counsel in South Africa, Belize, Trinidad and Tobago and Guyana, Senior Advocate in India, and President's Counsel in Sri Lanka.
In Australia, the governments of New South Wales and Queensland have replaced the title with Senior Counsel and State Counsel, respectively. Similar changes are under consideration in New Zealand and elsewhere in Australia.
The practice of appointed Queen's Counsels has also fallen into disuse in much of Canada where the two largest provinces, Ontario and Quebec, ceased making appointments in 1985 and 1976 respectively and the federal government ceased the practice in 1993. No substitute distinctions have been implemented in these jurisdictions as it is felt that the practice is a form of political patronage and is best discontinued entirely.
- Queen's Counsel - Historical Context a paper written in 2001 for the Nova Scotia Barrister's Society reviewing the history of the QC and current practices throughout Canada and the Commonwealth.
- Guardian 2004-04-10: QC system replaced by new scheme after 400 years
- Guardian 2004-05-28: U-turn lets QC title live on for now
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