Queen's Counsel (Hansard, 16 June 2003)

§ The Lord Chancellor (Lord Falconer of Thoroton)
My Lords, the Government intend to publish a consultation paper in which the principal issue will be 523 whether the status of Queen's Counsel should continue to exist. I shall announce the timetable for the paper later this week.

Noble Lords
We cannot hear!

§ Earl Ferrers
My Lords, I am grateful to the noble and learned Lord for what he said. The only trouble is that an awful lot of noble Lords could not hear. Would he care to say it again?

§ The Lord Chancellor
My Lords, I am sorry. The Government intend to publish a consultation paper in which the principal issue will be whether the status of Queen's Counsel should continue to exist. I shall announce the timetable for the paper later this week. I apologise for not being close enough to a microphone.

§ Earl Ferrers
My Lords, I congratulate the noble and learned Lord on his supreme elevation. However, I am not quite certain to what he is elevated. I am not sure whether he is the Lord Chancellor or the Speaker of the House of Lords, the Keeper of the Queen's Conscience or the Secretary of State for Constitutional Affairs. Or perhaps he is Pooh-Bah and covers them all. Perhaps he will clarify the situation.
Is the noble and learned Lord aware that I had intended to ask his predecessor, who I thought would be answering the Question, whether or not he believed that there must be some limit beyond which the Government would not go in the dismantling and desecration of our constitution, pageantry, history and tradition? However, as the Government have decided to remove an office of 1,400 years standing, there is no point in asking that question as the answer would be "no".
So perhaps I may ask another question. The noble and learned Lord said that he will be producing a consultation document in regard to the abolition of QCs. Presumably he or the Government believe that that would be a good thing otherwise they would not produce a consultation document. Can the noble and learned Lord explain why he believes that would be a good thing and why the Bar, without the eloquence of his predecessor, the noble and learned Lord, Lord Irvine, and the noble and learned Lord, Lord Williams of Mostyn, would be better? Why would it be better to have such people removed from the auspices of Queen's Counsel, which gives them a high-profile and much-treasured standing? I hope that the noble and learned Lord will say that of course the Government will ask the question but that they do not expect to do it.

§ The Lord Chancellor
My Lords, I thank the noble and learned Lord for his congratulations.

§ Earl Ferrers
My Lords, the noble and learned Lord does me a great privilege, but I am not learned.

§ The Lord Chancellor
My Lords, I apologise for insulting the noble Earl in that way.
524 As my noble and learned predecessor made absolutely clear, the Government have an open mind in relation to the issue of Queen's Counsel. Those who are Queen's Counsel, including my noble and learned friends the former Lord Chancellor and Lord Williams of Mostyn, would be quite upset to think that their only role in life was to play a part in the pageantry. They are important and well-qualified people who make a real contribution to the law.
The question is whether it is appropriate that the state should give a kite mark from which people benefit substantially. Is it right to continue with the present system or are there better ways of doing it, as, for example, the Bar Council has suggested?

§ Lord Carlisle of Bucklow
My Lords, the noble and learned Lord said that there will be consultation. Will the time allowed for that consultation be more, the same or less than the time allowed for consultation over the abolition of the post of Lord Chancellor; the decision to go for a supreme court rather than the House of Lords as the final court of appeal in this country; and the whole question of the appointment of the judiciary? Is it intended that the period of consultation on this issue will be longer than that given for those matters?

§ The Lord Chancellor
My Lords, as regards Queen's Counsel, there will be consultation for as long as it takes to come to the right conclusion. The effect of the announcements made last Thursday was that the role of Lord Chancellor would eventually be abolished to ensure that there would be a properly independent judiciary. It is wrong that a government Minister can sit as a judge.

§ Lord Goodhart
My Lords, while it is plainly welcome that there will be consultation on the subject of Queen's Counsel, does the noble and learned Lord agree that if it is not the Government's job to appoint judges—as now appears to be accepted—it is certainly not the Government's job to choose Queen's Counsel? Is he willing to say that any further appointments that may be made to the rank of Queen's Counsel should not be made by him or by any other member of the Government?

§ The Lord Chancellor
My Lords, one of the issues to be consulted upon is precisely that. As I said in answer to the Question of the noble Earl, Lord Ferrers, we have an open mind on that issue. It would be wrong for me to predetermine the result.

Lord Renton
My Lords, having become a Queen's Counsel nearly 50 years ago—the only one senior to me is the noble and learned Lord, Lord Shawcross, who is 101 and, alas, cannot walk—perhaps I may ask the noble and learned Lord whether he agrees that, for years and years, the present system of appointing Queen's Counsel has worked well. It has enabled High 525 Court and other judges to be chosen more easily than if we did not have the system working, and working so well?

§ The Lord Chancellor
My Lords, the process has worked well. My noble and learned friend Lord Irvine of Lairg introduced significant improvements in the way it works and it is widely regarded as a fair and transparent process. However, there are issues of principle as to whether it is right that the Government should determine whether or not someone should be promoted from one rank of the profession to another.

§ Baroness Buscombe
My Lords, does the noble and learned Lord therefore accept that the silk system is a necessary and valuable mark of quality which helps to identify outstanding advocates at the Bar? Can he confirm that it is not the principle that requires reassessment but merely the method by which appointments are made?

§ The Lord Chancellor
My Lords, both the principle and the method need to be assessed. Is it right that once given such status it should stay with you for the rest of your life? Is it right that it should be done by the Government? Is it right as far as the market is concerned—that is, the people who use the services of barristers—that it should be done in this way? We need to consult widely on all these issues and to obtain properly informed views.

§ Lord Ackner
My Lords, in answer to one question, the noble and learned Lord said that it would be wrong for a politician, such as the Lord Chancellor, to be the head of the judiciary and to sit as a judge, which reason justified the abolition of the office. However, the restriction on the Lord Chancellor being the head of the judiciary or sitting as a judge could have been removed, leaving the Lord Chancellor to carry out all his other multifarious duties. His activity, which I fully agree should not have been continued, could have been stopped, leaving him in the position of running a very important and useful department. Why was it not done in that way?

§ The Lord Chancellor
My Lords, I said that it would be wrong for a government Minister to sit as a judge. This is a question about Queen's Counsel, not about the announcements made at the end of last week.

§ Viscount Bledisloe
My Lords, I express my personal delight at seeing my noble and learned friend where he is. However, does he recognise that, although it may be highly desirable to take a long-term view of the process of appointing Queen's Counsel, it is utterly unsatisfactory to put the present system into suspense before anything has been invented to replace it? Does he recognise that members of the Bar have career plans in relation to the time at which they decide to apply for silk? Some decided not to apply this year. Does my noble and learned friend recognise that it would be 526 entirely unfair to deprive them, without any warning or replacement, of the opportunity to apply at the customary time next year?

§ The Lord Chancellor
My Lords, the position is that we think it right to suspend the competition. If the conclusion reached at the end of the process of consultation is that the system for applying for silk should continue, then the 2004 competition will he reinstated at a later date. If it is concluded that it should not continue, the position would be that it would have been right not to have had it.

§ Lord Elton
My Lords, in reply to my noble friend Lord Carlisle, the noble and learned Lord the Lord Chancellor said that, of course, there would be consultation about the future of QCs for as long as it takes to get the right answer. Was that a Freudian slip, or will the Government continue to consult until they get what they consider to be the right answer?

§ The Lord Chancellor
My Lords, it was not a Freudian slip. When I said "the right answer", I meant the right answer in terms of what is best in the public interest.

§ Lord Campbell of Alloway
My Lords, if the noble and learned Lord concedes that the present system of appointment is working well, will he say why consideration has now to be given to its abrogation?

§ The Lord Chancellor
My Lords, even though the system is well run, is transparent, and I believe that the best people are appointed to the rank of Queen's Counsel, there are issues of principle as to whether or not it is right that the Government should be able to promote someone within his or her own profession and whether that is the right way to deal with promotion within a profession.

§ Lord Clinton-Davis
My Lords, will my noble and learned friend assure us that the Law Society will also be consulted? In the last list of QCs, only one solicitor was appointed.

§ The Lord Chancellor
My Lords, of course I give that assurance.

§ The Earl of Onslow
My Lords, what is the authority for the new moral code relating to who should be appointed? From where do the principles come? Will the noble and learned Lord give us a definition of them, rather than simply saying that they are wrong in principle? What are the principles?

§ The Lord Chancellor
My Lords, it may be said that the Government's role in promoting someone in a profession from one rank to another would give the executive too much control over that profession. The criteria on which QCs are currently appointed are published.

§ Lord Peyton of Yeovil
My Lords, perhaps the noble and learned Lord will remind his colleagues that if they 527 continue indefinitely with the paint-stripping process to which they seem addicted, they may themselves ultimately appear dull and drab.

§ The Lord Chancellor
My Lords, that is certainly not our intention. In relation to all the changes that have been proposed, we seek to ensure that the results reached are in the public interest.