Dialogue: Eminent species faces threat of extinction

SIR DOUGLAS GRAHAM* says excellence will be the victim if the Government abolishes the rank of Queen's Counsel.

Among the numerous interdepartmental reviews of policy and the independent commissions and inquiries which almost inevitably make recommendations in line with what the Government wants, there is one proposed reform which is unlikely to attract much attention.

It is a review of the rank of Queen's Counsel (or silks, because they wear silk barristers' robes) that has been undertaken at the direction of the Attorney-General.

Because few members of the public know much about QCs and probably care even less, there is a real possibility that the rank of Queen's Counsel will quietly be abolished with little fanfare and only the odd objection from a handful of lawyers.

No doubt they can be silenced by painting them as either living in the past, or for having a direct personal interest in the subject. Should abolition happen, however, a 400-year tradition will come to an end.

Even in New Zealand there have been QCs for almost a century. One would have thought that something with such a long history must have something going for it and any attempt to abolish it would need considerable justification.

Recently a discussion booklet on QCs was released for public comment. It contains a potted history of the rank, and then puts the arguments for and against its abolition.

QCs first came into being in England in the 16th century to assist the Crown law officers who found the workload too much. So senior respected lawyers were appointed as silks to assist and, even today, in theory at least, they are obliged to accept Crown work as a priority.

But from a practical point of view, silks today rarely act for the Crown and are simply recognised as being eminent leaders of the legal profession. Most are barristers who practise alone in chambers with the occasional outstanding individual such as the present Clerk of the House and the former Chief Parliamentary Counsel.

For those in private practice the rank of QC is much sought because it is a declaration of seniority and competence which is usually reflected in the fees that are then charged. So there are always many more applicants than the six or so appointed each year by the Attorney-General with the concurrence of the Chief Justice after wide confidential investigation.

So appointment reflects excellence and rewards skill and endeavour. And the system has, as a result, one real advantage to the government-of-the-day system that does not receive comment in the booklet at all.

This arises when considering judicial appointments. To have a pool of QCs provides a helpful immediate list of acknowledged leaders who will have enjoyed a period of high earning and, therefore, may be prepared to accept appointment to the Bench with the substantial reduction in income that entails.

But the public benefits from this recognition of excellence, too.

Litigants are able to choose counsel in the knowledge that a QC is an acknowledged leader and specialist in the eyes of the Judiciary, the Government and the legal profession.

There are a number of other reasons set out in the booklet which supports the present system.

The arguments advanced in the booklet for abolition are far from convincing. First it is said that the rank has no rational or modern basis within the legal system - whatever that means.

The basis is little different now from in 1907 when the first New Zealand QC was appointed. It is then suggested that there is no parallel recognition in other professions despite medicine having its own recognition of senior specialists, and the clergy having a clear hierarchical structure all its own. So there doesn't seem much of an argument there.

Then it is suggested that having grades of barristers might be seen as inconsistent with the notion of equal treatment of all litigants before the courts.

If this means that abolition of the rank will result in lawyers charging the same, that is simply ludicrous and will never happen.

Fees charged reflect skill and experience, and senior counsel will always receive greater rewards than junior inexperienced counsel whether they are called QCs or not. So no merit there, either.

Lastly, it questions whether experienced barristers in law firms should also be eligible for appointment.

That is a debate that has been going on for years. It is hardly an argument to abolish the rank altogether.

So the arguments in favour of abolition appear to have little substance. One is left with the lingering feeling that the real reason the Government is considering abolition is that it perceives the rank of QC, reflecting as it does the achievement of excellence, is elitist.

It is, consequentially, unfair on the rest of the profession who have not reached the same high standard. Much better, then, to do away with it and have everyone on the same level.

If this is the case, once again we are witnessing an attack on excellence and the recognition and rewards that rightly brings, and the destruction without any justification of yet another tradition inherited from England.

What is more, it is a reform that no one has sought. Why the Government is so determined to proceed in these circumstances is beyond my comprehension.

* Sir Douglas Graham is a former Attorney-General.