Unravelling the mystery of the QC

Clayton Morgan, GUEST COLUMNIST

The current procedure of appointing a Queen's Counsel (QC) remains a mystery to most legal practitioners. This irony can only be explained by the fact that after all the relevant bodies have made their recommendations, it is the political directorate who make the final decision and recommendations to the governor general. In making this decision, one assumes that they are guided by the recommendations of a committee consisting of members of the following bodies:

The chief justice of Jamaica.

1. The president of the Court of Appeal

2. The General Legal Council

3. The Jamaican Bar Association

4. The Cornwall Bar Association

5. The Advocate Association of Jamaica

6. The Queen's Council Committee consisting of current and retired Queen's Counsels

It is highly unlikely that a nominee for QC will be successful if any of the above named bodies raises any strong objections to the recommendations.

Shortly before former Prime Minister Bruce Golding demitted office, he invited me, in my capacity of president of the Cornwall Bar Association, to a meeting and inquired why no attorneys in the rural parishes, but particularly in the county of Cornwall, were being appointed QC, the last such appointment being nearly 20 years ago. I considered the question to be strange coming from the prime minister, as I had always thought that it is the prime minister who makes the final decision. I, however, understand that the prime minister can only act on the recommendations that are submitted.

Mr. Golding then requested me to establish a Committee of the Cornwall Bar Association to conduct a study and make recommendations for change to the then minister of justice, Senator Dorothy Lightbourne, QC. The committee consisting of myself as chairman, Fredrick Hamaty, QC, and Michael Erskine met and drafted a set of recommendations to the prime minister, the minister of justice, and the Jamaican Bar Association. We are still awaiting an official response from the Government.

The title of Queen's Counsel has from time immemorial been awarded to barristers-at-law in England and throughout the British Commonwealth in recognition of their intellectual and advocacy skills through the practice of law at the Bar. All appointments were made by the reigning sovereign and all awardees were entitled to have the designation QC, or KC (depending on whether the relevant sovereign was male or female), behind their names.

QC SUFFERED HARSH CRITICISM

From its very inception several centuries ago, the process and criteria for selection and appointment of Queen's Counsel was widely criticised as being unfair. Indeed, some writers went as far as to describe the process as being sexist, chauvinistic and racist. These criticisms found favour with a broad cross section of not only legal practitioners but also among several stakeholders in civil society. For example, a historical review of the process reveals that the great majority of awardees throughout the British Commonwealth were white and upper-class males, many of whom failed to demonstrate any distinction of intellect or advocacy at the Bar. Several of the awards were justifiably criticised as being a quid pro quo for favours given by the awardees or their families to the sovereign or political parties over the years.

Over the last quarter-century or so, criticism of the process of selection and appointments has been more strident, particularly among members of the legal profession throughout the Commonwealth. In the United Kingdom, the appointment of Queen's Counsel was suspended in 2003, and it was widely expected that the ancient system would be suspended or abolished to make way for a new process underlined by transparency, fairness and evidence.

In Jamaica, there has always been talk of the need to change the system of appointments of QCs, although such talk has mostly been subdued and confined to members of the legal profession. Since our Independence in 1962, several practitioners have openly questioned the relevance of the title, notwithstanding the fact that the Privy Council continues to be our highest law court and Her Majesty Queen Elizabeth II continues to be our head of state. This constitutional anachronism has given rise to some debate among interested stakeholders and members of civil society, especially in view of the fact that the process of appointment and designation has been severely curtailed in several of our sister Commonwealth Countries, including the United Kingdom.

In Nigeria, the title QC has been replaced with Senior Advocate of Nigeria. Appointments are restricted to fewer than 30 lawyers annually, and are made by the chief justice of Nigeria on the recommendation of a Legal Practitioner Privileges Committee.

In Australia, most state governments have replaced the QC with Senior Counsel. The Supreme Court of Western Australia replaced the QC with the Office of Senior Counsel on September 24, 2001. New Zealand abolished the title in 2006 and replaced it with Senior Counsel.

In Canada, several provinces continue the practice of appointing QCs. However, Ontario ceased the practice in 1985 and the federal government did likewise in 1993. No substitute designations have been made, apparently on the grounds that the appointments are a form of political patronage and are at best discontinued.

Closer to home, Belize, Trinidad and Tobago and Guyana have all changed QC to SC, and with the advent of the Caribbean Court of Justice, the other Commonwealth Caribbean territories may soon follow suit.

Our QC Panel recognised that some practitioners (including myself) are not interested in non-academic awards. But others are, and it is unfair to subject them to travelling this uncertain road. We, therefore, recommended the establishment of an Independent Selection Panel similar to what obtains in England and Wales. The panel shall consist of the following members:

a. A retired judge of appeal

b. A retired puisne judge

c. A nominee of the General Legal Council

d. A nominee from each of the presently established and active Bar Associations and The Advocates Association.

e. The senior justice of the peace nominee of the custos, (a layperson) from the parish where the applicant lives and/ or works.

The members with the assistance of the General Legal Council shall establish rules of procedure and elect their chairperson.

All recommendations for appointment shall be made to the attorney general in his capacity as head of the Bar, who shall within a specific time after receiving the recommendation advise the prime minister and governor general of the recommendation. The PM or GG shall (also within a specific time) make the awards.

WHAT ABOUT THE REJECTED?

All unsuccessful applicants must, if requested, be given an interview with the panel or a subcommittee thereof for an explanation of the reasons given for their failure to qualify. Unsuccessful applicants should also be given the opportunity to reapply.

The title of the award should be changed from QC to Senior Counsel or State Counsel.

All applicants should have a period of at least 20 years of continuous practice in their areas of expertise.

Counsel who have already received the award should be given the option to keep same or surrender it in exchange for the new award.

The current system of awards should continue pending a thorough review of the process with a view to changing same within six months.

Clayton A. Morgan is an attorney-at-law. Email feedback to columns@gleanerjm.com and claymoco@cwjamaica.com.