5th March 2006

The Lawyers and Conveyancers Bill and Queen's Counsel

The Lawyers and Conveyancers Bill will have its Second Reading in the House of Representatives on Wednesday. Aside from implementing a number of wide-ranging changes to the legal profession, it will - if passed without amendment - rename the office of Queen's Counsel. These will thereafter be known as "Senior Counsel". No reason is given for renaming the office.

It might be argued that the title isn't important, but if that were so, then why is it being changed? It would appear to be another attempt to remove a symbol - and an important and highly visible one - associated with the Crown.

"QC" is a well-known and internationally understood brand of excellence; "SC" would be much less respected, as the experience of several Australian states has shown. "Senior Counsel" is at best unimaginative, at worst unnecessarily ambiguous. Most importantly, this change is purely politically-motivated.

Clause 105 of the Bill is the key provision:

105 Office of Queen's Counsel to be known as Senior Counsel

(1) As from the commencement of this section, the office previously known in New Zealand as Queen's Counsel is to be known in New Zealand as Senior Counsel.

The Bill as originally drafted caused particular offence. The original clause 106(1) provided that:

As from the commencement of this section, -
(a) no person may be appointed as a Queen's Counsel or King's Counsel for New Zealand; and
(b) the prerogative right or power of the Crown to appoint persons as Queen's Counsel or King's Counsel for New Zealand ceases to have effect as part of the law of New Zealand.

This showed a determined effort to remove the Queen's Counsel "root and branch". They were not merely abolished, but banned as well, and the royal prerogative in this regard abrogated.

This constitutionally outrageous provision has gone. Instead the Bill provides that:

(5) The powers conferred by this section do not derogate from the power to appoint, under the Royal prerogative, persons to the office previously known as Queen's Counsel and to designate the persons appointed to that office as Senior Counsel.

(1) The Governor-General may, by Order in Council, make regulations prescribing---

(a) the process by which candidates may be recommended to the Governor-General for appointment, by letters patent, under the Royal prerogative as Senior Counsel:

This is much milder and less offensive. In effect the office of Queen's Counsel is now simply to be renamed, and would remain a Crown appointment under the royal prerogative. As before, current QCs would be allowed to keep their titles if they wished to do so.

The Bill changes the title, while making no significant change to the nature of the office - discussions as to whether counsel in partnerships should be eligible for appointment notwithstanding. The technical distinctions as to whether this is a new office, or merely renamed, and whether it is appointed under the royal prerogative or exclusively under the authority of the Bill, are important, but would scarcely attract public notice.

What remains vitally important is that if this Bill is passed as it stands no more Queen's Counsel will be appointed, and we will instead have the unimaginatively named "Senior Counsel".

This type of reform has no place in the legal profession, which should be - and seen to be - non-political. It should also be asked whether The Queen has been consulted, in this year of Her Majesty's 80th birthday, about the ending of Queen's Counsel. Many Queen's Counsel have expressed concern at the proposed destruction of their office, but have felt powerless to prevent this from happening, and reluctant to even speak in its defence, for fear of entering a political debate.

The title of Queen's Counsel should be retained as reflecting New Zealand's constitutional structure, the history of the institution in New Zealand, and its established reputation in New Zealand and abroad. There is no reason for a change.

We urge Members of Parliament to oppose the passage of the Lawyers and Conveyancers Bill as presently drafted, and amend those provisions which are designed to advance the so-called "republic by stealth". Such a move as the Bill proposes is scarcely stealthy; it is open and unequivocal in its determination to remove yet another part of our heritage as a constitutional monarchy.

Dr Noel Cox Chairman

ENDS

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