Chapter 11 Title of Queen's Counsel
Issue
11. Though this issue was not expressly referred to in the Group's remit, the Group noted that the status of Queen's Counsel might have implications for the market in legal services.
Scotland
11.1 In Scotland the Queen approved the appointment of Queen's Counsel on the recommendation of the First Minister. Candidates were nominated to the First Minister by the Lord Justice General, who consulted others judges, the Dean of the Faculty of Advocates, the Lord Advocate and the President of the Law Society of Scotland before making recommendations.
11.2 The Partnership Agreement included a commitment to ensure that, in future, Queen's Counsel would be appointed in a more open and independent way. In proposing another QC competition in 2005, the Lord Justice General suggested to Ministers the appointment of an independent person to observe the appointment procedure and report to the First Minister on whether the process was conducted fairly and objectively. The First Minister agreed with this recommendation and appointed Sir Roy Cameron, the former Chief Constable of Dumfries and Galloway and of Lothian and Borders and former HM Chief Inspector of Constabulary, to act as an independent observer to the process of appointing Queen's Counsel in Scotland. The Lord President submitted his recommendations for appointments in April 2005.
11.3 At the same time, Sir Roy Cameron submitted his report to Ministers. His report concluded that the process had been conducted fairly and objectively but suggested that some further steps might be taken to adopt more open practices in future, such as improving the quality of information in assessments by (a) strengthening the guidance on the use of references and (b) providing a more specific focus for referees comments based on competencies of advocacy, legal ability and experience, and professional qualities. Sir Roy also suggested that some aspects of good practice likely to emerge from new developments in selection in public appointments might be of future interest to the application process for QCs in Scotland.
11.4 The First Minister accepted the Lord Justice General's recommendations and Her Majesty the Queen approved the appointment of 14 additional Queen's Counsel in Scotland. The new appointments were announced on 16 June 2005 and brought the total of QCs to 158. The Report was published on the Scottish Executive website and can be accessed at http://www.scotland.gov.uk/Topics/Justice/Courts/judicialinfo/qcappointments .
England and Wales
11.5 In its report Competition in Professions published in 2001, the OFT considered the position of the title of Queen's Counsel in England and Wales. The report questioned both the involvement of government in conferring a title that had a marked impact on fee level, and the information value to consumers of a title where the title offered no information about the barrister's specialism and, in the absence of any system of revalidation, offered no guarantee that a barrister's level of competence was sustained over time.
11.6 Further conferral of QC title was suspended in England and Wales in spring 2003, pending a process of consultation and review. The OFT response to the government consultation, issued in autumn 2003, suggested that the criterion on which to judge whether the title was in the public interest or not should be whether it was a useful kitemark by which buyers of advocacy services could better choose barristers.
11.7 In general, the OFT considered that to function effectively, a kitemark should meet the following criteria :
- appointments were made on an objective basis;
- the appointment process was fair and transparent;
- entry was subject only to candidates meeting a standard without influence of any kind of quota; and
- awards had to be revalidated from time to time, and were capable of being withdrawn.
11.8 The OFT found that the QC system in England and Wales did not meet these criteria in a number of respects. In particular, the appointment system was not sufficiently transparent to allow an assessment of the objectivity of the criteria applied or the fairness of the appointment process. Moreover, the persistence over time of the proportion of barristers who held the title suggested that some form of quota might have been in place and there was no provision to revalidate and where necessary withdraw awards. The OFT was also concerned that the QC qualification did not offer sufficient information, for example on specialisms.
11.9 The possible anti-competitive effects of the Queen's Counsel system, which restricted the badge of excellence and the higher fee rates associated with it to those who succeeded in the appointment process, were addressed by a consultation paper issued by the Department of Constitutional Affairs in July 2003 207. The consultation was aimed at users of legal services and members of the legal profession, including all holders of the title of Queen's Counsel in England, Wales and Northern Ireland. In November 2004 the Bar Council and the Law Society announced an agreement on a new scheme for appointing Queen's Counsel in England and Wales which was based on an agreed competency framework and aimed at providing a more transparent, open, and fairer way to make such appointments. This interim scheme invited applications from summer 2005 .
11.10 The Department for Constitutional Affairs ( DCA) was currently carrying out a market study to consider how to improve information for users of legal services more generally. When the market study was complete, the interim scheme would be reviewed to ensure that it was compatible with any principles the Government adopted as a result of the study.
Northern Ireland
11.11 A competency framework had been agreed in relation to Northern Ireland and the professions there were working on a selection process. The framework and the selection process would be similar to those in England and Wales, with some relatively minor exceptions to allow for the small size of the consultation community in Northern Ireland and to take account of cost-effectiveness considerations, eg, the purchase of supporting information technology. The scheme was currently running behind the scheme in England & Wales but, since many fewer applications were expected, was likely to make its recommendations earlier.
Competition issues
11.12 Given similarities between the award system in Scotland and that which existed in England and Wales, the OFT believed there was a case for a review of the appointment system in Scotland to consider, in particular, whether the current system acted as a kitemark that benefited users of advocates' services in Scotland, and whether the continued involvement of Scottish Ministers in the award process could be justified.
11.13 The Scottish Consumer Council agreed with the Office of Fair Trading and expressed an interest in further examination of this issue in Scotland. The Council believed that there was a need to consider whether there was any requirement for such a quality mark, whether it was in the interest of consumers and whether it distorted competition.
11.14 The Faculty of Advocates observed that :
- the status of Queen's Counsel was one recognised by the Court and the Court had an interest in the issue.
- the system had always been different in Scotland to the extent that in practice the Lord President of the Court of Session processed and determined who became Queen's Counsel rather than a Government department as was the case in England and Wales.
11.15 As regards solicitor advocates, the Group noted that solicitor advocates could apply to become Queen's Counsel in Scotland and could also be paid as junior or senior counsel.
Conclusion
11.16 It was noted that action was in hand to improve the transparency of the appointment process for Queen's Counsel in Scotland. The Group concluded that it was not practicable to cover the impact of the status of Queen's Counsel on clients and competition in the legal services market in Scotland in the current research in the timescale available, but that the issue might merit further examination. The Office of Fair Trading and the Scottish Consumer Council believed that the system for appointing QCs should also be given further consideration.