Queen's Counsel Appointments (Hansard, 8 June 2004)

§ The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton)
My Lords, before answering, I shall make my usual declaration of interest. I was a QC; my wife is a QC; and my brother-in-law is a QC.
Decisions on how long the interim scheme should continue and in what form will be taken in the light of the outcome of the longer-term study of the legal market and Sir David Clementi's review of the regulation of the legal profession.

§ Lord Goodhart
My Lords, this is an issue of some importance, and I regret that the noble and learned Lord did not choose to make an oral Statement. That would have given us an opportunity for a short debate—or, indeed, given the number of QCs in this House, perhaps a long one. Does the noble and learned Lord recognise that the interim scheme is, in effect, the restoration of the status quo and must not be allowed 146 to continue indefinitely? Is he prepared to set a timescale for the introduction of the wider scheme mentioned in his Written Statement and, if so, what timescale does he have in mind?

§ Lord Falconer of Thoroton
My Lords, it is not a continuation of the status quo in that the decisions about who should become a QC will now be taken by the professions—namely, solicitors and the Bar—as opposed to the Government. We felt that it was wrong to abolish the rank of QC when there was considerable evidence that it benefited the market—in particular, so far as concerned the international business that came to London in relation to legal services.

Lord Renton
My Lords, is the noble and learned Lord aware that uncertainty is a great disadvantage to busy barristers? It is essential that the Government reach a final conclusion in this matter—preferably one which enables Queen's Counsel to continue as before.

§ Lord Falconer of Thoroton
My Lords, so far as concerns the uncertainty for barristers, the Written Statement that I made to this House made it clear that we hoped that the professions would put in place a scheme that allowed practitioners to apply for Silk towards the end of this year with a view to decisions being made early next year. I hope that that deals with the question of uncertainty relating to individual barristers.
Dealing with the first point raised by the noble Lord, Lord Goodhart, I believe that it would be wrong to set a time limit on the length of the interim scheme because we need to see both the results of the market study and the report of Sir David Clementi.

Lord Morris of Aberavon
My Lords, given that last year was regrettably a fallow year in the appointment of Her Majesty's Counsel, will that be taken into account in the numbers that are envisaged when normal service is resumed, albeit in a different form? I declare my interest.

§ Lord Falconer of Thoroton
My Lords, plainly it is for the professions to determine how the decisions are made. But my noble and learned friend is absolutely right: it was a year when no QCs were appointed, and no doubt that will have an effect on the applications.

§ Lord Thomas of Gresford
My Lords, will the scheme worked out by the professions be subject to the agreement of the noble and learned Lord? If so, will he bear in mind the necessity for playing fair by the provincial Bar and by the specialised Bar?

§ Lord Falconer of Thoroton
My Lords, as I made clear in the Written Statement that I made on this point, it is for the professions to work out of what the scheme should consist. The role of the Minister is to pass the recommendations to Her Majesty the Queen. 147 I would do so only if I were satisfied that the scheme was fair, that it promoted fairness and diversity and that it ensured that merit was the criteria.

§ Lord Mackay of Clashfern
My Lords, the noble and learned Lord said that he was a QC. Would the present tense be more accurate? I was invited to a nice lunch today, at which he spoke and on the invitation he was described as a QC. I am not sure what he considers his position to be at present.

§ Lord Falconer of Thoroton
My Lords, my understanding is that on becoming Lord Chancellor I ceased to be one of Her Majesty's Counsel learned in the law because I became one of Her Majesty's judges.

§ Lord Clinton-Davis
My Lords, does my noble and learned friend recognise not only that counsel—who have been very well represented in the House—should have a say, but that the solicitors' profession is very important in this matter? Would my noble and learned friend underline that?

§ Lord Falconer of Thoroton
My Lords, I welcome the intervention of my noble friend Lord Clinton-Davis. He is the first person to have spoken in the debate so far who is not or has not been at some stage a QC. My noble friend Lord Whitty spoke of World Oceans Day in an answer, so perhaps we should describe this as "World QC Day". Of course, there is an important role to be played by the solicitors' profession in the selection of people who are to become QCs. Both professions will play a role in the selection.

§ Lord Henley
My Lords, I speak as someone who has no interest to declare in this matter, unless the noble and learned Lord wishes to change his mind. Does the noble and learned Lord consider that it would have been better to have instituted a scheme before getting rid of the old one?

§ Lord Falconer of Thoroton
My Lords, the criticisms made about the way in which the old scheme operated, in particular by Sir Colin Campbell and the Judicial Appointments Commission, made the Government conclude that it would be impossible to continue on the old basis. The arrangement that we have made allows for the market to be looked at and, at the same time, the position of QCs will not be prejudiced. For example, because of the arrangement that we shall put in place for the professions, those who apply this year may be selected as QCs next time.

§ Lord Lester of Herne Hill
My Lords, given that there is a backlog caused by the hiatus, does the noble and learned Lord consider that the interim scheme will be able to double the number of QCs—I plead guilty to being one—or will there be roughly the same proportion as in the past? Will we see a shoal of QCs appointed this year?

§ Lord Falconer of Thoroton
My Lords, that is roughly the same question as my noble and learned friend Lord Morris of Aberavon asked. It is a matter for the professions when they set up the scheme as to who they select. I know there was a year when no appointments were made. No doubt that will be taken into account in the arrangements that are made.

§ Lord Tebbit
My Lords, in view of the fact that the Government seem to be losing control of the supply of Queen's Counsel, can the noble and learned Lord say whether the whole matter should be referred to the Office of Fair Trading and to the Monopolies Commission?

§ Lord Falconer of Thoroton
My Lords, I welcome the intervention of the noble Lord, Lord Tebbit, because he is the first non-lawyer to have spoken on this subject. The OFT considered the matter, and we considered what it said before drawing the conclusion that the right course was to continue on the basis that I have described, but also to look at the market overall. No doubt, the views of the OFT will be taken into account when we do that.