QCs should not lose their designation unless they are excluded from the profession and even then not automatically, the Bar Council has said.
It also said it would not be favour a “‘trip wire’ trawl of social media activity” to alert Queen’s Counsel Appointments (QCA) to bad behaviour by potential QCs.
The Bar Council described the removal of QC designation as a “serious and drastic step” which “ought not to be undertaken lightly”.
Under the current rules, QCs are appointed by the monarch by way of Letters Patent. The Bar Council said there should be a mechanism where serving QCs who were disbarred lost their status, though it should not be automatic.
It did not believe the designation should be removed for lesser disciplinary offences, other than in unspecified “appropriate cases”, and the designation of QC should never be suspended.
“In light of the extremely limited number of cases in which it might be appropriate to remove QC designation once it has been granted, the Bar Council does not see any justification for exploring with the Crown Office whether QC designation could be revoked more readily.”
The Bar Council was responding to a consultation on Integrity, Character and Conduct by the QCA, which said that the only QC to have their Letters of Patent revoked this century had been jailed for a criminal offence.
The QCA said: “This is not to suggest that there is a major problem of inappropriate behaviour by serving QCs – it appears that there have been only five cases over the last three years in which the Bar Standards Board took disciplinary action against a QC, and in none of which was the sanction any greater than a reprimand and a modest fine.
“However, in none of those cases was any consideration given to the question of whether it was appropriate for the advocate to continue to hold the QC designation.”
The QCA said it could be argued that designation should be removed only when an advocate had been excluded from his or her profession by the regulator; on the other hand QCs should be “expected to maintain the high standards required for appointment throughout their careers”.
The Bar Council agreed with the QCA that a social media trawl, as suggested by the Commissioner for Public Appointments, might be “practicable” for a small number of applicants shortlisted for public appointment, but would not be for over 180 candidates interviewed as part of last year’s QC competition.
The Bar Council said the QCA should “tread carefully and cautiously” as to whether to consult heads of chambers about QC appointments, which could lead to inconsistency and place heads of chambers in a “difficult position”.
However, it said many would “take the view that an award of silk is important enough to justify such a request”, and it would “unfortunate if relevant information known to heads of chambers (who are more likely than others to know such information) was not drawn to the selection panel’s attention simply for want of having asked”.
The Law Society said in its response to the consultation that it felt strongly that “the concept of an anecdotal character request” would be challenging.
The society warned that “applicants are likely to dispute matters not subject to factual findings, leading to the risk of the QCA becoming its own tribunal”.
The QCA accepted in the consultation that there were “no easy answers” to the question, and there was a “serious question” as to whether it was right for heads of chambers or partners of law firms to comment on applications, particularly as it would force applicants to reveal that they were applying for silk.