Editing King's Counsel (section)

== Historical origins in England and Wales ==

===Historical background===

[[File:William Ballantine Vanity Fair 5 March 1870 (crop).jpg|thumb|upright=1.1|Caricature of Serjeant [[William Ballantine]] SL wearing [[court dress]]. The extremely small skullcap on the very top of the wig is a vestigal [[coif]], worn only by [[serjeant-at-law|serjeants-at-law]]. Caption reads "He resisted the temptation to cross-examine a [[Prince du sang|Prince of the blood]]"; Vanity Fair, 5 March 1870]]

The [[Attorney General for England and Wales|attorney general]], [[Solicitor General for England and Wales|solicitor-general]] and [[Serjeant-at-law|king's serjeants]] were King's Counsel in Ordinary in the [[Kingdom of England]]. The first Queen's Counsel ''Extraordinary'' was Sir [[Francis Bacon]], who was given a patent giving him precedence at the Bar in 1597, and formally styled King's Counsel in 1603.<ref>Holdsworth, W.S. ''History of English Law''. 1938 vi 473–4.</ref><ref>''[[Patent Rolls]]'', 2 Jac I p 12 m 10.</ref> The right of precedence before the Court granted to Bacon became a hallmark of the early King's Counsel. True to their name, King's and Queen's Counsel initially were representatives of the Crown. The right of precedence and pre-audience bestowed upon them – a form of seniority that allowed them to address the court before others – allowed for the swift resolution of Crown litigation.<ref>{{cite journal |last1=Dawson |first1=NM |title=The Rank of Queen's Counsel: Judicial Perspectives |journal=King's Law Journal |date=2011 |volume=23 |issue=3 |page=39 |doi=10.5235/09615768.24.1.38 |s2cid=144615642 }}</ref>

The new rank of King's Counsel contributed to the gradual obsolescence of the formerly more senior [[serjeant-at-law]] by superseding it. The attorney-general and solicitor-general had similarly succeeded the king's serjeants as leaders of the Bar in [[House of Tudor|Tudor]] times, though not technically senior until 1623, except for the two senior king's serjeants, and 1813, respectively.<ref>Baker, J. H. "The English Legal Profession 1450–1550", ''Lawyers in Early Modern Europe and America'' (Wilfred Prest (ed.)), 1981, 20.</ref>

King's Counsel came to prominence during the early 1830s, prior to which they were relatively few in number. It became the standard means to recognise a [[barrister]] as a senior member of the profession, and the numbers multiplied accordingly.<ref name=duman>Duman, Daniel. ''The English and Colonial Bars in the Nineteenth Century''. 1983.</ref> It became of greater professional importance to become a KC, and the serjeants gradually declined. The KCs inherited the prestige of the serjeants and their priority before the courts. The earliest English law list, published in 1775, lists 165 members of the Bar, of whom 14 were King's Counsel, a proportion of about 8.5%. {{As of|2010}} roughly the same proportion existed, though the number of barristers had increased to about 12,250 in independent practice (i.e., excluding pupil barristers and employed barristers).<ref>{{cite web|url=http://www.barcouncil.org.uk/assets/documents/1%20Self%20Employed%20Bar%20excl%20Pupils%20by%20Ethnicity%20and%20Gender.pdf |archive-url=https://ghostarchive.org/archive/20221009/http://www.barcouncil.org.uk/assets/documents/1%20Self%20Employed%20Bar%20excl%20Pupils%20by%20Ethnicity%20and%20Gender.pdf |archive-date=2022-10-09 |url-status=live|title=Self-Employed Bar by Ethnicity and Gender|publisher=The Bar Council of the United Kingdom|work=barcouncil.org.uk|date=11 December 2009|access-date=19 March 2011}}{{dead link|date=July 2017|bot=InternetArchiveBot|fix-attempted=yes}}</ref>

In 1839, the number of Queen's Counsel was seventy.<ref name="104LT98">(1898) 104 Law Times 98 [https://books.google.com/books?id=XzJHAQAAMAAJ&q=%22number+of+Queen%27s+Counsel%22 Google Books].</ref> In 1882, the number of Queen's Counsel was 187.<ref>Edward Parker Wolstenholme and Richard Ottaway Turner. The Conveyancing and Law of Property Act, 1881, and the Vendor and Purchaser Act, 1874, with Notes. W Clowes. 1882. Page viii. [https://books.google.com/books?id=OGs0AAAAIAAJ Google Books]</ref> The list of Queen's Counsel in the Law List of 1897 gave the names of 238,<ref name=104LT98/> of whom hardly one third appeared to be in actual practice.<ref>{{cite book | first=Alexander | last=Pulling | title=The Order of the Coif | publisher=W Clowes & Sons | year=1897 | page=[https://archive.org/details/ordercoif01pullgoog/page/n251 206] | url=https://archive.org/details/ordercoif01pullgoog | access-date=1 January 2018}}</ref> In 1959, the number of practising Queen's Counsel was 181.<ref name=HCDeb6Mar1989>[[Hansard|HC Deb]] 6 March 1989 vol 148 [https://api.parliament.uk/historic-hansard/commons/1989/mar/06/queens-counsel col 596] per Mayhew AG</ref> In each of the five years up to 1970, the number of practising Queen's Counsel was 208, 209, 221, 236 and 262, respectively.<ref>HC Deb 22 July 1970 vol 804 [https://api.parliament.uk/historic-hansard/commons/1970/jul/22/maximum-number-of-judges-order-1970#column_697 col 697] per Crowder MP.</ref> In each of the years 1973 to 1978, the number of practising Queen's Counsel was 329, 345, 370, 372, 384 and 404, respectively.<ref>Final Report of the Royal Commission on Legal Services. [[Command paper|Cmnd]] 7648. HMSO. London. October 1979. Volume One. Page 479.</ref> In 1989, the number of practising Queen's Counsel was 601.<ref name="HCDeb6Mar1989" /> In each of the years 1991 to 2000, the number of practising Queen's Counsel was 736, 760, 797, 845, 891, 925, 974, 1006, 1043, and 1072, respectively.<ref>HC Deb 13 November 2000 vol 356 [https://api.parliament.uk/historic-hansard/written-answers/2000/nov/13/queens-counsel col 545W] per Lock MP</ref>

In the 19th century in England, the position was primarily one of rank within the profession, giving the holder certain rights and privileges in the courts. They were ranked as senior counsel, and took precedence in argument after the Attorney General and the Solicitor General of England.  Barristers who were not King's (or Queen's) Counsel were termed [[junior barrister]]s, and followed senior barristers in argument.  King's (or Queen's) Counsel normally always appeared in courts with a junior barrister, and led the direction of the case.  The junior barrister on a case could not disagree with the direction determined by the senior barrister.<ref>Earl of Halsbury et al., ''The Laws of England'', 1st ed. (London:  Butterworth & Co., 1908), vol II (Barristers), paras. 650, 651.</ref>

On colonial appeals to the [[Judicial Committee of the Privy Council]], established in 1833, the rule originally was that the case had to be led by a Queen's Counsel from England, even if the colonial counsel held the same rank in the colonial courts.  This rule was not eliminated until 1884, half a century after the establishment of the Judicial Committee.<ref name=Halsbury651>Halsbury, ''The Laws of England'', para 651, note (''p'').</ref>

Gradually, the appointment as King's Counsel or Queen's Counsel shifted from a vocational calling to a badge of honour and prestige. In 1898, [[William Watson, Baron Watson|Lord Watson]] noted in his opinion in ''Attorney General of the Dominion of Canada v. Attorney General for the Province of Ontario,'' writing on behalf of the [[Judicial Committee of the Privy Council]], that:

{{Blockquote|The exact position occupied by a Queen's Counsel duly appointed is a subject which might admit of a good deal of discussion. It is in the nature of an office under the Crown, although any duties which it entails are almost as unsubstantial as its emoluments; and it is also in the nature of an honour or dignity to this extent, that it is a mark and recognition by the Sovereign of the professional eminence of the counsel upon whom it is conferred.<ref name="bailii.org">[http://www.bailii.org/uk/cases/UKPC/1897/1897_49.html ''Attorney General for the Dominion of Canada v Attorney General for the Province of Ontario''], [1897] UKPC 49, [1898] AC 247.</ref>
}}

===Restrictions===

Until the late 19th century, some barristers were granted a [[patent of precedence]] in order to obtain the same precedence as a KC without the concomitant restrictions. King's Counsel were originally considered an [[office of profit]] and hence, under the [[Act of Settlement 1701]], incompatible with membership of the [[House of Commons of the United Kingdom|House of Commons]].<ref name="jstor44505852">{{cite journal |title=Current Events |journal=Irish Jurist |date=May 1935 |volume=1 |issue=2 |pages=9 |jstor=44505852 |issn=0021-1273}}</ref> KCs were also required to take the [[Oath of Supremacy]], which [[Daniel O'Connell]] refused as a [[Catholic Church in Ireland|Roman Catholic]]. Despite being the most prominent and best-paid barrister in Ireland, he was a junior counsel for 30 years until granted a patent of precedence in 1831.<ref>{{cite journal |last1=Gallagher |first1=Paul |title=Daniel O'Connell – The Barrister |journal=Irish Judicial Studies Journal |date=2017 |volume=1 |page=76 |url=https://www.judicialstudiesjournal.ie/assets/uploads/documents/pdfs/2017-Edition-01/Daniel%20O'Connell%20the%20Barrister%20Paul%20Gallagher%20SC.pdf |archive-url=https://ghostarchive.org/archive/20221009/https://www.judicialstudiesjournal.ie/assets/uploads/documents/pdfs/2017-Edition-01/Daniel%20O'Connell%20the%20Barrister%20Paul%20Gallagher%20SC.pdf |archive-date=2022-10-09 |url-status=live |access-date=27 June 2020}}</ref>

From the beginning, KCs were not allowed to appear against [[the Crown]] without a special licence, but this was generally given as a formality. This stipulation was particularly important in criminal cases, which are mostly brought in the name of the Crown. The result was that, until 1920 in [[England and Wales]], KCs had to have a licence to appear in criminal cases for the defence. King's Counsel and serjeants were prohibited, at least from the mid-nineteenth century, from drafting [[pleading]]s alone; a junior barrister had to be retained. They could not appear in judges' chambers or inferior courts, either, other than in exceptional cases. They were not permitted to appear in court without a junior barrister, and they had to have [[barristers' chambers]] in London.<ref name=duman/><ref name=Halsbury651/>

These restrictions had a number of consequences: they made the taking of silk something of a professional risk, because the appointment abolished some of the staple work of the junior barrister; they made the use of leading counsel more expensive, and therefore ensured that they were retained only in more important cases; and they protected the work of the junior bar, which could not be excluded by the retention of leading counsel. By the end of the twentieth century, however, all of these rules had been abolished. Appointment as QC has been said to be a matter of status and prestige only, with no formal disadvantages.<ref>{{cite web|url=https://www.lawteacher.net/free-law-essays/english-legal-system/the-role-of-queens-counsel.php?vref=1|title=The role of queens counsel|last=Teacher|first=Law|date=November 2013|website=Law Teacher|publisher=LawTeacher.net|location=Nottingham, UK|access-date=10 February 2019}}</ref>

In the 21st century, King's Counsel continue to have the seniority in audience, following the Attorney General and the Solicitor General.  It is still the rule that junior counsel must follow the lead of senior counsel in pleading a case, and cannot depart from senior counsel's approach to the issues.<ref>Lord Hailsham of St Marylebone et al., ''Laws of England'', 4th ed. reissue (London:  Butterworths, 1989), vol 3(1), para. 434.</ref>

===Women appointed===

The first woman appointed King's Counsel was [[Helen Kinnear]] in Canada in 1934.<ref>{{Cite web|url=https://lso.ca/getdoc/9d09e05a-0448-4a92-b108-3328d01a2c9f/helen-kinnear|title=Helen Kinnear|last=Brown|first=Deidré Rowe|website=Law Society of Ontario|access-date=2019-02-10}}</ref> The first women to be appointed as King's Counsel in England and Wales were [[Helena Normanton]] and [[Rose Heilbron]] in 1949. They were preceded by [[Margaret Kidd]] KC (later Dame Margaret Kidd QC) appointed a KC in Scotland in 1948.<ref>{{Cite web|url=http://first100years.org.uk/helena-normanton/|title=Helena Normanton|date=2014-10-15|website=First 100 Years|access-date=2019-02-10}}</ref><ref>{{Cite news|url=https://www.theguardian.com/news/2005/dec/13/guardianobituaries.gender|title=Obituary: Dame Rose Heilbron|last=Morton|first=James|date=2005-12-13|work=The Guardian|access-date=2019-02-10|language=en-GB|issn=0261-3077}}</ref> In Australia, the first QC appointed was [[Roma Mitchell]], appointed 1962, who later became the first female [[Judge|Justice]] of the [[Supreme Court of South Australia]] (1965), and then the first female Acting Chief Justice.