What is a King's Counsel?
King’s Counsel are barristers appointed by patent to be one of ‘His Majesty’s counsel learned in the law.’ The appointment is a distinction conferred by the Crown and recognized by the courts.
The general requirements for appointment include eminent practice at the Bar, reasonably frequent engagement in important litigation, professional success dependent on scholarship, court experience and sound judgment, reputable private life, principal interest in the practice of law, and the spread of counsel at the Bars of the main centres. (See Cox and Spiller, Queen’s Counsel [2000] NZLJ 371, 373).
“Appointment is made only of the select few regarded as worthy of the prize awarded to the specially diligent, learned, upright and capable members of the Bar.” (Cox and Spiller, ibid).
In earlier times King’s Counsel were expected to become advocates on behalf of the Sovereign and could not appear against the Crown with out a licence from the Crown. This restriction no longer applies and today King’s Counsel are regularly engaged by private citizens in litigation against the Crown.
“[King’s Counsel are] a tremendous prop to the independence of the Bar. He/she is a bulwark of freedom on which the private citizen can implicitly rely in a quest of justice. He/she is a taxi on the rank, obliged, as a taxi is, to give his/her services to the first-comer irrespective of his/her own social preferences, provided that the fee can be paid; such cases serve to remind even scoffers of the magnificent impartiality of our legal system.”
Dr Stevens QC being called to the Inner Bar at the Wellington High Court on 19 June 2002
History of the rank of King's Counsel
King’s Counsel have been appointed for the last 400 years.
Sir Francis Bacon was the first lawyer to become counsel to the Sovereign. He was appointed in 1596 during the reign of Queen Elizabeth I.
By the end of the 16th century and the early part of the 17th century it had become apparent that the King’s Attorney and the King’s Solicitor (the forerunners of the Law Officers of the Crown) were unable by themselves to perform all the duties that their offices imposed on them. As a result counsel who became known as King’s Counsel were appointed to give assistance and advice to the Law Officers of the Crown. They were often consulted in capital cases and in cases of state. King’s Counsel were at that time expected to become advocates on behalf of the Sovereign. During the reign of a Queen, they were called Queen’s Counsel.
By the beginning of the 17th century King’s Counsel were appointed directly by the Crown and the rank became an established order in the legal profession.
During the 18th century King’s Counsel came to be regarded as a class of counsel who had been given a rank superior to that of ordinary counsel. By this time appointees had ceased to perform the functions for which the office had originally been created. Appointment has, since the reign of King William IV, been seen as a mark of recognition for the leading counsel of the day.
The first appointment in New Zealand was made in 1907.
Annually the Governor-General, acting on behalf of the King, appoints King’s Counsel for New Zealand on the recommendation of the Attorney-General and with the concurrence of the Chief Justice of New Zealand. Soon afterwards the newly appointed Silk (a term derived from the silk gown worn by King’s Counsel) is called to the Inner Bar in a ceremony at the High Court.