The Big Question: Should we abolish Queen's Counsel?

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The Independent Online

Why is this issue important now?

The QC system was suspended three years ago by the then Lord Chancellor, Lord Irvine of Lairg, after concerns were raised about its fairness. Last week the first new QCs since then were appointed under a resumed and reformed process. Only four out of the new 175 appointments were solicitors; the rest barristers. This has prompted Fiona Woolf, the new president of the Law Society, which represents 100,000 solicitors in England and Wales, to question the value of the rank of silk. In an interview with the Law Society Gazette she said: "I'm not sure that I would perpetuate a QC system. I would go down the route of specialist accreditation - for example, having specialist family or energy lawyers, etc.

It should be done by field of practice or sector in which lawyers operate, rather than having a system that says these people are generally fantastic lawyers and deserve to be QCs. Especially when many lawyers might have an amazingly obscure speciality."

Her comments will rekindle the debate about the purpose and value of the QC system.

What do QCs do?

Queen's Counsel are senior lawyers - barristers or solicitors - who are recognised experts in a particular field of law. Many of them are also experienced and accomplished advocates, although this is not a prerequisite for selection. QCs will lead their legal team in and out of court and may also be appointed to head government inquiries or take on other quasi-judicial roles that require the skills of an impartial arbiter. Big and complex cases often require a QC (or "silk") who is then supported by at least one junior barrister.

How long have they been around?

The rank of Queen's Counsel dates back over 400 years. The very first person to attain the rank was Francis Bacon, appointed by Elizabeth I in 1594 as a political manoeuvre to prevent him acting against the Crown. The appointment of Queen's Counsel was not made or applied for by anyone under William and Mary, or Anne.

In the 18th century, the total number of Queen's Counsel was not more than 20. And by the end of the 17th century there were signs that this new order of counsel was ceasing to be in any real sense the Queen's Counsel, as they had begun take on a more independent role.

Successful candidates are still entitled to wear a silk gown, hence the expression "taking silk", and are allowed to sit in the front row in court. Becmong a QC has also been long regarded as a stepping stone to becoming a judge.

The first women QCs were appointed in 1949 and until recently all QCs had to be barristers. In 1995 the rules changed to allow solicitors to take silk.

Some famous barrister QCs include Michael Mansfield, Cherie Blair and Baroness Kennedy. The most famous fictional QC was Kavanagh QC, played by the late John Thaw. But the best known television barrister, Rumpole of the Bailey, never managed to take silk, although his creator John Mortimer was a very successful QC.

How are QCs appointed?

Under a reformed system brought in last year, senior barristers and solicitors are invited to apply for the rank of QC through an open competition. The previous selection process was criticised for being too secretive, prone to the allegation that it was simply a means of perpetuating an Old Boys' Network of very well-paid barristers. The changes, supported by the Bar, the Government and the Law Society, mean that the Lord Chancellor no longer makes the appointment.

Instead selection is carried out by an independent Selection Panel, whose membership includes lay assessors unconnected with the legal profession. The panel makes its decisions based on a range of referees nominated by the applicant who can include other advocates who have seen them perform in court.

The panel says the new process serves the public interest by "offering a fair and transparent means of identifying excellence in advocacy in the higher courts".

The panel adds: "The scheme provides for the identification of the very best advocates rigorously and objectively and promotes fairness, excellence and diversity."

What public benefit do they provide?

The Office of Fair Trading investigated the legal professions in 2001. It concluded that the rank of QC offered the consumer "questionable value" because it permitted barristers to double their earnings overnight. Some barristers are known to even tell their clerks to treble their earnings as soon as the "silk" letter drops through their letter box. The OFT also raised concerns that the kitemark restricted competition in the legal market place. It is also suggested that a judge will listen to a QC's arguments with greater respect.

The Bar, in turn, dismissed the report as "glib and ignorant". At the time, the then chairman of the Bar, Roy Amlot QC, said: "We would have to question its conclusions in almost every respect. People are more than just consumers, they are citizens who require the protection of a strong framework for justice, including an independent legal profession."

What about women and ethnic minority lawyers?

One of the arguments for abolishing QCs was that women and ethnic minorities were missing out on a key promotion in their chosen profession. But leading black and Asian barristers have been reluctant to join a campaign to abolish the rank as they argue that this would deprive many up-and-coming ethnic minority lawyers from an accolade that they were on the brink of achieving. Last week's round of appointments showed that while women were more successful than in other years, ethnic minority lawyers had made little progress. Last week only 10 QC appointments were from an ethnic minority backgrounds.

What should replace QCs?

An alternative, favoured by the new Law Society president is an accreditation scheme, which simply recognises experts in a particular field of law. This would do away with the need for a kitemark that rewarded both advocacy and legal knowledge. Instead independent panels would be able to recommend candidates as approved lawyers capable of working in specific areas of law. A more radical approach might be to fuse the legal professions so that there is one body of lawyers, of whom some are specialist advocates, some are litigators and some are legal advisers.

Would the public benefit from getting rid of QCs?

Yes...

* Legal fees would plummet, as QCs would no longer be able to charge double for their services

* Instead of having two barristers in court - a QC and his or her junior - a case could proceed with just one advocate

* An alternative system for selecting 'specialist lawyers' would open up the kitemark to more women and ethnic minority solicitors

No...

* The standard of advocacy in court would fall, leading to more appeals and mistrials

* The quality of the judiciary would be affected as appointments to the Bench could no longer be drawn from the ranks of QCs

* Without a recognised standard of excellence, barristers would be more interested in media headlines than serving their clients