Dialogue: No justification today for lawyers to be given silk

GRANT HUSCROFT* says that tradition offers no
good reason for continuing to appoint Queen's Counsel in New Zealand.

Sir Douglas Graham expressed dismay in a Dialogue article at the prospect that Queen's Counsel might be abolished, and argued for retention of the appointment process. Unfortunately, none of his arguments is persuasive. In fact, they make a strong case for abolition of the rank.

Queen's Counsel (QCs) are appointed by the Governor-General on the recommendation of the Attorney-General with the concurrence of the Chief Justice. They are almost always barristers in sole practice.

Historically, QCs were appointed to conduct the Crown's legal business, but this is no longer the case, and hasn't been for some time. All that remains is the tradition of appointing QCs, a tradition that dates to 1907 in New Zealand. Traditions die hard - traditions such as horsehair wigs, for example, which until recently were worn by barristers appearing in our courts.

Some, like Sir Douglas, lament the loss of tradition. But it is incumbent on those who would maintain an otherwise pointless practice to offer some justification for it.

Sir Douglas' arguments focus on the importance of rewarding merit. The appointment of a barrister as a QC is, he says, recognition of excellence and a reward for skill and endeavour.

Merit ought to be rewarded, and so it is: the best lawyers invariably earn the most money, if that is what motivates them. The best lawyers enjoy the respect of their peers and the community. But lawyers have no claim to public recognition and the Government has no business in conferring it.

There is no similar system in place for other professionals. Sir Douglas' suggestion that medicine and the clergy have parallel recognition systems is quite wrong. Doctors earn specialist status by study, examination and experience. The Minister of Health does not purport to confer generic expert status upon them. As for churches, their hierarchical structures have nothing to do with the Government.

There is a case to be made for recognising expertise, but it has nothing to do with the Government rewarding lawyers. The sole reason for recognising expertise is for the benefit and protection of the public.

The law is highly specialised and the public is entitled to know whether a lawyer has expertise in a particular area. A non-governmental system of certifying lawyers' expertise, not simply that of barristers in sole practice, that operated transparently, with relevant criteria, would be useful.

Conferral of the rank of QC does not perform this function. QCs are, in general, distinguished barristers, but they need not be expert in all facets of the law, or any in particular, to be appointed a QC.

How, then, does the Attorney-General decide which barristers should be appointed QC? In fact, although a practice note sets out the application and appointment procedure, there are no formal criteria for the appointment. As the Attorney-General, Margaret Wilson, acknowledges, there is a "high degree of judgmental content" in the process.

Various members of the Judiciary are consulted in the appointment process, but that does not address this concern. On the contrary, it gives rise to a different concern. How can an independent Judiciary play a role in conferring honours on some who practise before them?

Appointment to the rank of QC is much sought because, as Sir Douglas admits, it allows barristers to charge higher fees. This admission should cause considerable embarrassment, but Sir Douglas seeks to make a virtue of it.

The higher fees charged by QCs are, he argues, a benefit to the Government because QCs will enjoy a period of higher earning and, as a result, may be prepared to suffer the substantial reduction in income that appointment as a judge would entail.

Helping someone to earn more money so they may be willing to accept a different, more prominent job that pays less is odd, to say the least. It is no way to select judges.

The Attorney-General has issued a discussion paper and called for submissions on the appointment of QCs. She will, no doubt, be urged to retain the rank by those who have it and those who aspire to it.

Some will suggest that the rank be made more widely available, to include barristers in law firms, Government lawyers and perhaps even academics. Others will seek to broaden the selection criteria to ensure that more women and Maori are appointed.

The Attorney-General should be guided by the Canadian experience. Both Ontario and Canada stopped appointing QCs some time ago, without any harm being caused to the legal profession or the public.

The practice of appointing QCs has nothing beyond tradition to commend it and should be abolished.

* Grant Huscroft is a senior lecturer in Auckland University's faculty of law.