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Taking Silk

10 September 2015 - By James Greenland

The first person to "take silk" was Sir Francis Bacon at the end of the 16th century, Royal Letters Patent granting him "precedence at the bar" in 1597. A prominent British jurist and statesman, Bacon is perhaps best remembered as an early advocate of empiricism and the scientific method – a man who believed in planned procedures and proper process. Interestingly, he also served as Attorney-General and Lord Chancellor of England. In one of his later works The New Atlantis, published posthumously in 1627, Bacon outlined his humanitarian aspirations with a description of his idealised "utopia" – a land where state powers were separated, religious and political expression was free, and where women had greater rights and were better represented.

Sir Francis Bacon QC was an original "renaissance man", bent on challenging the powers that be to improve upon the social status quo.

Three-hundred-and-ten years after his appointment, in 1907, the first 10 Kiwi King's Counsel were nominated by then Chief Justice Robert Stout, hand-picked from the young Dominion's four main centres – Auckland, Wellington, Christchurch and Dunedin.

Another 81 years after that New Zealand's first women silks – Dames Sian Elias and Lowell Goddard – were appointed. The first ever woman to achieve the rank was Canadian Helen Alice Kinnear in 1934.

Now, in New Zealand in 2015, the list of appointed King's and Queen's Counsel has reached 282. Of these, 255 are men, and 27 women.

At time of writing, 117 Queen's Counsel are registered as practising in New Zealand. Another 33 are on the Bench.

Auckland is, or was, home to 116, Wellington to 98, and Wanganui, Rotorua, and Tauranga one each, among others from smaller centres.

Commonly, each KC and QC, whether male or female, rural or urban, was appointed in recognition of their "precedence at the bar", "extraordinary contributions to law", "excellency" of advocacy, and/or "pre-eminence" in their field.

Appointment process

Whatever words describe them, Queen's Counsel should be the crème of the crop.

Only the best take silk – a reference to the special black silk gown worn exclusively by lawyers of the rank.

The Lawyers and Conveyancers Act 2006 (LCA) establishes the Lawyers and Conveyancers Act (Lawyers: Queen's Counsel) Regulations 2012. The Regulations are supplemented by Guidelines describing both the eligibility criteria for QC applicants and the process by which applicants are recommended to the Crown for appointment. The Guidelines for candidates may be agreed upon between and issued by the Attorney-General and the Chief Justice.

Repeated throughout both the Guidelines for Candidates 2015 and the Regulations is the idea that Queen's Counsel 'rank' is awarded on merit to barristers sole who have "demonstrated excellence in their careers as litigators". The "standard is high". While not strictly prohibited by career length, applicants will typically have at least 25-30 years' experience before being appointed.

Under the current Guidelines applicants must be "barristers sole specialising in litigation" and must undertake to continue in independent practice in New Zealand.

As the Guidelines note, these onerous criteria reflect that the office of Queen's Counsel is the "top echelon of advocates" at the New Zealand bar.

But how does the Crown determine who is at the top?

The Guidelines state that the Solicitor-General, on behalf of the Attorney-General, will consult with the New Zealand Law Society and the New Zealand Bar Association. The Attorney-General will consult with the Chief Justice, before recommending candidates for appointment to the Governor-General who issues Letters Patent under Royal prerogative on behalf of the Queen.

Attorney-General Chris Finlayson says the rank recognises eminent barristers who serve the legal profession with the qualities of integrity, trustworthiness and excellence.

Excellence is the overarching requirement. Length and depth of applicants' experience is relevant.

Reference is made to knowledge of the law, oral and written advocacy, integrity, honesty, and leadership – "setting and maintaining the standards of the profession".

"Independence" is essential, Queen's Counsel being obliged to devote themselves to their clients' interests free from influence.

And independence is also an essential quality of the appointment process. Decisions about who to appoint belong not only to the Attorney-General but also the Chief Justice and the other interested parties, Mr Finlayson says.

Democratic

"I would hate to think that people think I just sit here in my office making all the decisions," he says.

"There is a fairly rigorous process that it goes through. It's much more democratic than people think."

As with judicial appointments, the Attorney-General says it is a "rare occasion" when he doesn't go along with the recommendations of those charged with advising him.

"It's not an Attorney-General decision, it's a decision made by the Chief Justice and Attorney-General following exhaustive consultation.

"I don't have a 'snitcher' against anyone – I have to listen to what people say.

"If I made a judicial appointment that ended in an uproar, the system would be broken. And I would be humiliated. If I started to make appointments on the basis of political considerations or if I appointed my friends, it would destroy the system.

"If you politicise this kind of thing you kill it stone dead."

Some questions

But there are ripples of dissent within the rank, with suggestions that the process has become mired in politics, a contest of popularity and favouritism.

Photo of some male QCs
At the ceremony where they were called to the inner bar in 2013 (from left): John Pike QC, Richard Fowler QC, Terence Smith QC, Justin Smith QC, Leslie Taylor QC and Peter Churchman QC.


A critical view from the inside comes from eminent criminal litigator Robert Lithgow QC who pulls no punches stepping into the ring to challenge the Attorney-General's claims that the process is rigorous and democratic.

"All lawyers should know the rank, in New Zealand, is under the control of the Attorney-General of the day.

"Wanting to be appointed Queen's Counsel is wanting to and considering yourself able and likely to gain his approval," Mr Lithgow says.

He says his reading of the Regulations suggests that the decision is "solely for the Attorney-General".

Mr Lithgow's biggest contention with the 2015 appointment round is the fact only two applicants were selected, whereas the average over the previous 15 years is closer to 8 appointments annually, he says.

A third QC was appointed under the prerogative, recognised for his "tremendous" contributions to legal history, Māori land law, Treaty of Waitangi law, and academia.

Ninety-four QCs have been appointed through 12 distinct application rounds since 6 June 2000.

Many suitable practitioners put time and effort, and cash, into applications for this year's "sparse" round, which Mr Lithgow says was governed by a process that, with the direct but undisclosed approval of their professional representative bodies, was as difficult as passing through the "eye of a needle".

"It is important with such processes that the rules are clear," he says.

"It is important that the act of applying … is not so unpleasant that the process itself alienates the participants, by filling them with the quite correct feeling that they have not been treated fairly."

Mr Lithgow believes the Crown Law Office, NZLS and NZBA should "apologise to the very many unsuccessful candidates". He says their application fees should be returned.

"The disappointed candidates cannot say these things publicly.

"I can, so I do," he says.

He suggests the rank ought to be an "encouragement on the way up" for younger barristers, rather than a "prize for reaching the summit plateau" of one's career.

The Attorney-General says he simply wants "good advocates at the bar" who represent a range of practice areas, geographical areas and demographics.

"I have recommended a number of people on the recommendations of others who would not have ever supported this government, and I shouldn't care less," Mr Finlayson says.

"The last thing I want is only those who get the rank being people who had been in the big law firms and acted for corporates."

While not actively seeking a representative sample, Mr Finlayson says it is healthy for the system to naturally produce a diverse range of applicants, "as indeed it does," rather than only the high-profile corporate and criminal lawyers.

"I appoint people because they are good advocates," in any field of law, he says.

Too many applicants, too few appointments

"There could have been a few surprises that the numbers were so low this year," Mr Finlayson acknowledges.

The reason is the break in appointments between 2008 and 2013 following Labour's scrapping of the QC title in 2006. "There was going to have to be a catch up," he says.

"I think that henceforth one could expect appointments to be in the 4-5-6 range from now on.

"Sometimes of course there are spikes. In 2002 there were nine appointments, in 2007 there were 12. But those sorts of figures, I think the general consensus is, would be regarded as anomalous."

Interestingly, in the period from 1 August 1985 to 16 May 1999, just 90 lawyers were appointed QC, on 19 distinct occasions.

As for the number of applicants, "too many" apply each year, Mr Finlayson says.

"It's far from me to dissuade people from applying, but there are a very large number and I think a lot of people apply before they are really ready.

"People just need to quietly and carefully reflect on whether they should be applying, whether they need to wait for a few more years, or whether they should not do it at all."

Mr Finlayson says barristers considering applying should talk with mentors who won't agree with them, "won't give them what they want to hear, but will perhaps give them some fairly honest appraisal".

"I can't stop people applying. If they want to pay their fee, all applications will be considered.

"People just need to be a bit more realistic."

The application form for aspiring QCs must be typed or written in black ink, must adhere to strict word limits, and are preferred to be received by Crown Law in an electronic format along with an enclosed or evidence of a pre-paid $500 fee.

Crown Law received 85 applications following the announcement of the 2015 QC round in February.

Two were successful, while a third new QC was appointed under the 'royal prerogative' in recognition of his "extraordinary contribution to the field of law".

The Crown collected more than $40,000 in fees from unsuccessful applicants in 2015.

Applicants may apply again during the next round of appointments, which, while not required to be, can be held each year.

Cat and mouse over connection to the Monarchy

To the Attorney-General the rank of Queen's Counsel is an "international brand for senior lawyers" with a quality that other newly-adopted titles don't have. His is an opinion not shared by all.

Controversy and clash of opinions over the method and propriety of Queen's Counsel appointments, and indeed whether New Zealand should continue to use the title at all, are not new.

Let's look back. First, and briefly, to our Commonwealth cousins.

The 20th century marked the end of Empire. 'De-colonisation' and 'independence' were words that buzzed with excitement and the anticipation of change throughout the old British colonies in the 1900s, as one by one the Crown's far flung jewels began to break away from the traditions of the Monarchy and establish their own systems of justice and administration, and with that their own ranks with which to recognise excellence in advocacy.

In Nigeria, QCs were replaced with 'Senior Advocates of Nigeria' a new title that allows esteemed barristers the old privileges of wearing silk gowns and charging higher fees. India and Bangladesh have 'Senior Advocates' too.

In Hong Kong after independence barristers previously appointed QCs were renamed 'Senior Counsel'. The title is also used in South Africa, Trinidad and Tobago and Guyana.

In Sri Lanka, it's 'President's Counsel'.

Some provinces of Canada retain the QC title, but the rank is awarded in recognition of assistance given to community groups, charities, environmental groups and clients in need of legal aid, as much as a lawyer's expertise and excellence. In Nova Scotia, eligible candidates may apply, or be nominated by others.

Finally, Australia. Each State has different rules, titles and procedures. Many repealed the title of Queen's Counsel in the 1990s, only to re-introduce it in recent years. It's a confused system, a muddled demonstration of lingering colonial reluctance to severe ties with the Monarchy.

New Zealand's fifth Labour government renamed the rank of QC in 2008, preferring 'Senior Counsel' as an indicator of legal excellence free from monarchical connotation.

Labour also extended the eligibility of applicants, to include those who practised in law firms or partnerships and thus did not meet the traditional requirements.

In 2010, National brought back the title of Queen's Counsel and again limited appointments to barristers sole.

Hot debate

Debate was hot at the Lawyers and Conveyancers Amendment Bill 2010's first reading in Parliament, as reported in Hansard, 13 October 2010.

"The [QC] appointments process, and the rigidity that is said to exist in it, is a complete nonsense," said Charles Chauvel, Labour MP.

"The House needs to ask the question of how New Zealand can be taken seriously in the world as a multicultural Pacific nation while this Government is so addicted to 'colonial cringe'," he said.

Labour's David Parker added: "I just do not think that we should make artificial distinctions that are not made on the basis of quality but on the basis of some strange historical tradition inherited from the UK, which has no relevance to New Zealand."

The Attorney-General today says Labour's attempt at reform "didn't work" – "all of them [barristers appointed Senior Counsel] reverted back to being QCs".

Labour leader and former lawyer Andrew Little disagrees.

"[The rank] is about recognition of standing and expertise as a lawyer. ['Senior Counsel'] works in other jurisdictions," he says.

Mr Little adds that New Zealand does not, and doesn't need to, base itself on England and Wales' legal system.

"New Zealand set up our own Supreme Court – the UK followed us on this. It is a question of our identity and self-confidence as a nation."

Gender in balance?

In line with the general social goal that women should be more fairly represented in positions of power, precedence, and professional acclaim, the appointment of Queen's Counsel, like that of other eminent offices, has become somewhat of a silent battleground in the fight for equality.

Photo of Miriam Dean QC, Gillian Coumbe QC and Stephanie Macmillan
Silks Miriam Dean QC (left) and Gillian Coumbe QC with Stephanie Macmillan (right). Ms Dean was made a QC in 2004 and Ms Coumbe in 2013.


The announcement of the 2015 round was accompanied by a public effort to encourage female barristers to put themselves forward to be considered for appointment as QC.

But the odds still don't add up.

It's more complex than the raw numbers show, Mr Finlayson says.

The proportion of women applying to become QCs is still less than the proportion of barristers who are female, with 19 women applying this year in a pool of 85 total applicants.

It is "very unfortunate" that only 15% of applications came from female barristers, the Attorney-General says.

"The raw numbers don't tell you the influence [women have within the New Zealand legal system], but the raw numbers do tell you that there is much more to be done."

Although, he says, there remain institutional reasons why fewer women are appointed QC, particularly the facts that women are still under-represented at senior levels in the profession, and that some women choose career paths alternate to the independent bar.

Auckland barrister Miriam Dean QC believes there are likely to be a number of factors influencing the slow uptake of women to the rank, including that potential female candidates may opt for judicial careers, choose to practice in law firms with the security of employment that tenure provides, or perhaps are simply cautious to ensure they have the experience required and are ready to take on the responsibility before they apply.

That does not mean, however, that more can't be done to see a higher percentage of women become QCs, she says.

"Encouraging and supporting women who have the requisite skills to apply is sometimes required.

"In my case, that encouragement was a very important factor in my decision to apply for silk.

"Sometimes we need an added push."

Within the rank and the wider profession there have also been murmurings that the application process inherently discriminates against women, who – research has shown – are less likely than men to self-nominate for senior positions such as Queen's Counsel.

There might also be an unconscious bias within law firms to favour male leaders, it has been suggested.

Andrew Little says it's a problem in the profession generally.

"Women comprise more than half of all law graduates but the majority of partners are men and most judicial appointments are men," he says.

"It's a generational thing and we must work harder to get more women into senior roles. If women leave the profession to have families, coming back to a senior level seems to be much harder. The women I know who have been partners then have a family often don't want to come back full-time. They want part-time work and often end up coming back not as a partner but as an associate.

"This change is in the hands of firms, to be more active in ensuring women return to senior roles, whether they are in full-time work or not. We must have a legal profession that's reflective of our society."

The Attorney-General says society is at the stage where the talent is there, within the growing pool of female professionals, and that we are at the stage where "people just need to do it. Be appointed".

"I would think that over the next 10-15 years you would see equality occur," he says.

Concludes

The issues New Zealand has encountered with regard to Queen's Counsel are not new, nor limited to our antipodean experience.

The process in England has faced scrutiny, too, with allegations that appointments were based on the "secret soundings" of judges and establishment figures charged with making recommendations.

Following reform of the process, recommendations are now made by a selection panel, independent of the Bar, the Law Society and Government.

Agreement between the parties led to a process that is said to "serve the public interest by offering a fair and transparent means of identifying excellence in advocacy in the higher courts".

"The scheme provides for the identification of the very best advocates rigorously and objectively and promotes fairness, excellence and diversity," the British Queen's Counsel website states.

It has been said that the British approach is more rigid, but also more fair.

That brings us to the tale of Trevor de Cleene – "Rumpole" to many who knew him.

Trevor was a Labour MP in the 1980s and an outspoken barrister known widely for his outdoor pursuits, penchant for deer-stalking and the pump-action shotgun he kept under his bed.

He had applied unsuccessfully to become a QC five times before deciding to judicially challenge the process.

In August 2000, Mr de Cleene filed claims at the High Court in Wellington against the Chief Justice Sian Elias, alleging that the QC appointment process was unfair.

His pleadings said it was "unconstitutional" and "shrouded in secrecy".

De Cleene died a short time later, before the claims could be considered by the courts, his demands for "natural justice" going unheard.

Such questions will likely remain unconsidered, until another barrister decides to challenge the propriety of appointments to the "inner bar".

One imagines that the first King's Counsel Sir Francis Bacon, with his ardent advocacy for proper process, unflinching pursuit of transparent empirical procedure, and ambition to bring about a better world for women, might support more open, accountable and gender-equalising provisions for the appointment QCs.


Voices

Attorney-General Hon Chris Finlayson

The appointment of a Queen's Counsel is governed by three things:

1. section 118A of the Lawyers Conveyancers Act 2006;

2. the Lawyers and Conveyancers Act (Lawyers: Queen's Counsel) Regulations 2012; and

3. the Guidelines for Candidates issued by the Chief Justice and the Attorney-General under regulation 5 of the Regulations.

The Guidelines currently require candidates to be "barristers sole specialising in litigation". During this year's appointment round a number of senior barristers, who do not appear in court as advocates, contacted me to say they thought the Guidelines were too narrow in their scope.

The Guidelines focus on advocacy and the argument has been made that non-advocate barristers should also be entitled to apply for and obtain the rank of Queen's Counsel.

I am looking at this issue very carefully. Within the next few months I expect to consult the New Zealand Bar Association and the New Zealand Law Society and through them the wider profession on whether the eligibility criteria in the Guidelines (in particular the "specialising in litigation" requirement) should in fact be amended.

No conclusions have yet been drawn but I intend to carry out a process to consider the issue.

From within the Rank

Marie Dyhrberg QC says one of the most exciting aspects of her appointment in 2014 was the recognition of her speciality practice area – the criminal defence bar.

"I believe my appointment will provide an incentive for lawyers to persevere with defence work and especially women, so they see rewards do flow from the hard and long hours such work demands," she says.

"Filing the actual application is only part of the process because the rest of 'the application' comes from your reputation gained from appearing in court and being recognised for that work.

"I do not believe the reputation is to do with winning and losing in criminal defence work because it is not easy to win in that area. Your reputation comes from taking on the hard cases, doing a good job and working hard with what you have."

New Zealand Bar Association

Paul Mabey QC, president of the NZBA, says he can't comment directly on the nature of consultations between interested parties, "as that would disclose confidential matters within the appointment process."

"I do not comment as to whether there are too many applicants each year. People are free to apply if they wish, and as often as they wish.

"All barristers [sole who specialise in litigation] are eligible to apply and may do so as often as they wish. Considerable time and effort is involved in consultation on the part of the NZBA and the NZLS.

"There have been calls for more transparency but that clashes with the highly confidential nature of the process," Mr Mabey says.

"I have first-hand knowledge of that process and am satisfied that the role of the NZBA in the appointment of Queen's Counsel is essential and carried out with utmost diligence and care.

"The Solicitor-General provides the NZBA with details of all applicants. Extensive inquiries are made including liaison with the NZLS. A list of those considered suitable for appointment is provided to the Solicitor-General. The NZLS compiles its own separate list.

"The Attorney-General then makes recommendations with the concurrence of the Chief Justice.

"The Attorney-General may include persons for prerogative appointment. The NZLS and NZBA are not consulted on those appointments."

Last updated on the 10th September 2015