Young Man’s View: Time To Reform Selection Process For Qcs

Friday 06th, March 2015 / 08:20 Published by

adrian-gibsonThe entire selection process for Queen’s Counsel (QC) should be fundamentally reformed. As it stands, the process is jaundiced, seemingly involves much political chicanery and not in the public’s interest. It has to become an independent, more transparent undertaking.

Whenever an attorney becomes a member of the Inner Bar, it is referred to as taking silk. A QC traditionally wears a silk gown (and a specially designed wig). As Queen Elizabeth currently serves as monarch, the reference QC bears monarchical connotations; however, if a male sovereign ascends to the throne, such appointees also will be appointed by letters patent but referred to as King’s Counsel (KC). Notably, in Caribbean countries such as Trinidad and Tobago and Belize, the name is replaced by Senior Counsel (SC).

Generally, a person appointed as QC should be one who has engaged in distinguished practice, demonstrates sound judgment, scholarship and integrity. What’s more, I believe that such a person should be a leader in their field of practice, so much so that they have also engaged in important litigation and, moreover, been a participant in ground-breaking legal matters and/or the advancement of legal arguments that are novel points of law that would or could lend to a paradigm shift in the way the courts or society views certain issues.

Such a person should also be one who has taken initiative to mentor junior members of the bar and to contribute to the bar in other notable ways.

QCs have traditionally been barristers who conducted work in the courts. Some of the privileges afforded QCs are the right to sit at the front bench of the court, to be heard first in time and to charge higher legal fees. Indeed, QCs are at the top of the legal totem pole, highly sought after by corporations, the wealthy and persons seeking folks who have been deemed to be thought leaders in their profession. However, there are some attorneys who seek to become a QC merely because it allows them to charge more money and increases their fee-earning work.

At present, the Attorney General – after consultation – has the power to recommend possible QC candidates to the Prime Minister, making the procedure patently political and allowing for favouritism and political patronage as opposed to merit, to drive the decision making process. State involvement is questionable and may be totally inappropriate.

Pursuant to section 15 of the Legal Professions Act, a “counsel and attorney may apply to the Attorney General for appointment as one of Her Majesty’s Counsel”. It further notes that “the Attorney-General, after consultation with the Chief Justice, the President of the Bar Association and such other persons as the Attorney-General sees fit, may recommend to the Prime Minister the appointment of the applicant” and that “upon receipt of a recommendation from the Attorney-General the Prime Minister may advise the Governor General to appoint the applicant as one of Her Majesty’s Counsel”.

Recently, a listing of new QCs was publicised, infuriating members of the bar, the Bahamas Bar Association and members of the public. As an attorney myself, I listened to many of the complaints and questioned the list, seeking to examine the legal practice/background of each recipient. The listing, in my opinion, has debased the coinage of QC. I was excited to see that Maurice Glinton – a most deserving leader in legal practice—finally attained what he rightly deserved (more on that later).

Most notable for me was the fact that the current Attorney General – in what could, in my opinion, be described as the greatest display of self-medicated narcissism – did not just take silk, she grabbed it (lock, stock and two smoking barrels!) I wondered out loud if Allyson Maynard-Gibson had – per the Act – applied to herself for an appointment as one of Her Majesty’s Counsel and questioned with whom she had consulted before recommending herself to the Prime Minister. From my point of view, it crossed the threshold of shamelessness and seemed to indicate that she craved admission into this special grouping of attorneys.

To whom did the Attorney General apply? And, why did she seek to be appointed QC while serving in the post?

What’s more, Mrs Gibson was the sole female appointee to the Inner Bar which, perhaps in her mind and the minds of others, would mean that she would have become the first female Bahamian attorney deemed QC. But, oh no, my research has shown that that is not the case.

The first Bahamian counsel and attorney named to the Inner Bar – Senior Counsel (SC) in Belize, which is the equivalent of QC in the Bahamas – is Jacqueline Osadebay Marshalleck. She is the daughter of former Justice Emmanuel Osadebay and she was appointed SC by Chief Justice of Belize – Kenneth Benjamin – in January, 2014.

Mrs Marshalleck, who moved to Belize after meeting her husband in law school, was born in Nassau on November 8, 1970, and was called to the Bahamas Bar on October 20, 1995. When taken as a whole, she would be the first Bahamian attorney elevated to such a status.

In 2010, Mrs Marshalleck filed a claim against the Attorney General of Belize and, in what was then an extraordinary approach, two Court of Appeal judges were named as interested parties. At that time, she was challenging an amendment to the Belizean constitution that purportedly debased the doctrine of separation of powers and did not provide the justices security of tenure. At present, she is the President of the Belizean Bar Association, the Chancellor of the Anglican Diocese in Belize and Consul at the Bahamas Consulate in Belize City.

If the Attorney General was truly a proponent of women’s rights and the empowerment of women, wouldn’t she have ensured that more women were also appointed with her, which would have also added to her own credibility? Notably, the first woman to be appointed KC in the British Commonwealth was Canadian Helen Alice Kinnear in 1934. She was also the first woman to plead a case in the Supreme Court of Ontario.

Up until current Chief Justice Hartman Longley was appointed upon the resignation of Sir Michael Barnett, there was crackling tension – even trepidation – in the legal community, with a number of practitioners being concerned that Mrs Gibson would be appointed Chief Justice.

Many concerns have now been raised about the procedures relative to honouring outstanding legal practitioners. Since the Attorney General is already head of the bar, ex officio, there was no need to recommend herself (which appears to have been done when one considers the utterances of the President of the Bahamas Bar Association). Frankly, it appears to amount to an aberration and an abuse of process.

Is a mockery being made of the Westminster system?

In 2011, Trinidadian Prime Minister Kamla Persad-Bissessar recommended herself, the Chief Justice, the Attorney General, a Court of Appeal judge, heads of various departments of the State and eight other lawyers in private practice to be appointed Senior Counsel.

Much like Mrs Gibson, who, after her appointment, took to NB12 news to thank the Bar and all others involved in her appointment (here again, read section 15 of the Act), Prime Minister Persad-Bissessar said:

“Whilst we may bask in the glory of our own individual successes, the recognition now bestowed upon us carries with it the continued and perhaps heightened responsibility to the rule of law and the administration of justice. As leaders now at the Bar, we must be ever vigilant and mindful of the challenges ahead – and as charity begins at home – we must mentor, encourage and guide the younger members of our very noble profession,” she said.

What blatant self-aggrandisement!

What is also notable is the fact that – like Trinidad and Tobago – two sitting Cabinet ministers, who are supposed to be inactive in their practice while in Cabinet, were appointed to the Inner Bar: Deputy Prime Minister Philip Brave Davis and Junior Minister of Legal Affairs/Attorney General Damien Gomez. Don’t get me wrong, I think that both gentlemen would normally deserve the award of QC, particularly when one looks at their body of work over the years. However, they are Cabinet ministers and it just leaves a bad taste in one’s mouth. Why seek to be QC while holding these positions? To the wider public, that just amounts to what appears to be a two-fold entitlement – at least in their minds – to holding nationally recognised posts/honours.

Some time ago, the Prime Minister himself admitted that duly-qualified persons were being denied appointments to the Inner Bar, noting that any future appointments he would make would be representative of the wider bar. We have not seen that with the recent slate of appointees and one wonders whether we will see that will the promised second grouping of appointees. It appears that influence peddling reigns supreme and it remains the “good ole boys” club. We must equalise the playing field so that female lawyers (who account for the majority of membership at the Bar), who have distinguished themselves, are also rewarded this prestigious title.

In a 2013 speech, published by several news outlets, Prime Minister Perry Christie said that the primary aim of the new appointments to QC – this recent lot – would be to ensure that foreign investors and the wider public had a more extensive selection of leading counsel in the various spheres of legal practice.

He said: “Indeed, I would venture to say that unless these additional appointments are made, the lawyers who are already QCs will have an unfair commercial advantage over those other lawyers who are also acknowledged leaders of the profession in their various areas of specialisation, but who were overlooked when appointments were made in the past.

“Thus, the QCs who are about to be appointed will cover not only various areas of commercial law but other under-represented areas at the inner bar, including family law, constitutional and administrative law and criminal law. The result should be an inner bar that is more representative of the leadership of the profession within the various areas of specialisation at the bar,” Mr Christie said.

We have yet to see that and, thus far, his utterances merely amount to idle vapourings.

I recently attained a copy of a letter written by then president of the Bahamas Bar Association Ruth Bowe-Darville to Attorney General Allyson Maynard-Gibson on November 26, 2012.

In that letter, Mrs Bowe-Darville stated that “while the Council (of the Bahamas Bar Association) was unaware of the criteria used in the selection process it has considered the names presented, years of practice, areas of specialty, competency (leading counsel or exceptional skills as a practitioner, contribution to the jurisprudence of the Bahamas, leadership qualities, involvement with the Bahamas Bar Association, community and civic involvement, disciplinary status and regard by peers and colleagues in the profession).”

Mrs Bowe-Darville then proceeded to advise the Attorney General of the Council’s position on the names presented to them – Neville Smith, Philip Davis, Elliot Lockhart, Allyson Maynard Gibson, Maurice Glinton, Ferron Bethell, Diane Stewart, Metta McMillan-Hughes, Damien Gomez, Wayne Munroe, Alfred Sears, Anthony McKinney and Robert Adams.

In relation to the Attorney General seeking to recommend herself, Mrs Bowe-Darville wrote: “It is not advisable for the Attorney General to recommend him/herself. This recommendation should come from the President of the Bar or the Prime Minister. It would be preferable if the letter was re-issued with the name omitted and allow someone else to make the recommendation. Further, newly appointed law officers (Attorney General and Solicitor General) are awarded the rank as a courtesy title on taking up their Ministerial post if they are not already QCs in their own right.”

Turning her attention to former Justice Neville Smith, Mrs Bowe-Darville wrote: “The Council notes that he is a retired justice of the Supreme Court, a designation superior to that of a Queen’s Counsel. The Council feels that such an appointment is improper and is not reflective of years of legal tradition. As before, the controversy in Trinidad and Tobago, our sister Commonwealth country earlier this year, should be instructive in this regard. Will he be referred to as Justice (Retd.) or Queen’s Counsel?”

Clearly, the advice of Mrs Bowe-Darville and the Council, concerning the appointments of the Attorney General and Justice Smith, fell on deaf ears as both were recently made QCs whilst names such as Metta McMillan-Hughes, Diane Stewart, Ferron Bethell and Robert Adams were left off the list. The Council had also recommended the appointment of Stephanie Unwala, Cedric Parker and Charles Mackay, but they too were left off the recent list. What’s more, Mrs Bowe-Darville – a well-respected practitioner – was also not included among the recent appointees.

In her letter on behalf of the Council, Mrs Bowe-Darville noted that the listing “did not properly reflect a balance in the ratio of males to females” and asserted that “the majority of persons are litigators (civil) and the specialty areas of the law are not truly apparent”.

She further advised: “The Council in its consultation wishes to take this opportunity to impress upon the Office of the Attorney General that it is time to properly formulate a process for the appointment of Queen’s Counsel so that any future appointments will be done by an impartial and independent panel upon invitations to apply or nominations for an appointment honoris causa (for the sake of honour). Please know that the Council is more than willing to contribute to such a discussion.”

In Trinidad and Tobago, the appointments to SC caused the rank to become a political football and a societal joke, with – I’m told – some Trinidadians jokingly asking others in bar room chats and elsewhere “boy, you ain’t get one too?” In the Bahamas, we see this hallowed institution – the Inner Bar – being devalued and diminished by politics so much so that it will soon become a political joke, a parody for newspaper cartoonists. What’s more, we see the same occurring relative to the appointment of judges to the Bench.

It was most unfortunate when noted attorney Maurice Glinton was not appointed to the Inner Bar in 2009. In 2010, he felt compelled to challenge the selection process, inquiring why his name was not forwarded to the Governor General for appointment. Notably, he had previously been invited to apply. In his law suit, he argued that the selection process was discriminatory and noted that two lawyers – both junior to him – had been appointed QCs at that time. From my close observation, Mr Glinton has demonstrated that he is intellectually astute and is held in great esteem throughout the region for his juridical discernment. It was he who led the charge in causing the Privy Council to reconsider their position on the death penalty in 2005 (ie too long a time on death row amounts to cruel and unusual punishment and therefore violates one’s constitutional rights), cases of worker compensation and other questions related to the rule of law and challenges to government, arguing that magistrates should not exercise judicial authority as they are appointed by the Public Services Commission and not the Judicial and Legal Services Commission as envisaged by the Constitution and so on.

Though he had mounted many legal battles against the Pindling administration, it was Mr Glinton who the former Prime Minister sought out to represent him in the post-1992 Commissions of Inquiry. I have long admired his fearlessness and independence of thought and I have yet to meet him.

Frankly, I believe that Mr Glinton’s appointment to QC should be retroactive to 2009.

I have also come into possession of a letter written by newly appointed QC and Deputy Attorney General Damien Gomez, written on November 22, 2009. Mr Gomez wrote:

“The recent commencement of judicial review proceedings relating to the exclusion of senior Negro advocates practising at the Bahamas Bar from admission to the Inner Bar by Maurice Glinton raises many issues that have plagued our community for centuries. Discrimination on both the political and racial level ought to be deplored and condemned. Yet, more than 50 years after the death of Alfred Francis Adderley, the most renowned Bahamian black advocate and victim of racial discrimination, our community is confronted by this plague.”

Mr Gomez asserted that the then “Attorney General had arrogated unto himself the ‘prerogative’ of determining when an attorney should apply”.

“To compound matters, between 2002 and 2007, then Prime Minister Christie failed or refused to communicate to the Governor General the appointment of any silk. His excuse was a reverence for A F Adderley’s son, the Honourable Paul Lawrence Adderley, who indicated a desire to be called to the Inner Bar if the legislation was changed so as to permit the recipient of such an appointment to use the title Senior Counsel. The nobility and patriotism of the Adderleys is boundless, and yet, besides the point; there are and were other attorneys worthy of appointment who were being deprived of an entitlement,” Mr Gomez wrote.

The now Minister of State for Legal Affairs went on to say: “In 2009, approximately 50 years after A F Adderley’s death, the Government of the Bahamas publicly announced the list of appointees. The appointees had in common that they were all male attorneys, they all worked for law firms which are predominantly owned by white people (and supporters of the governing party) and at least one of their parents is white or ‘bright skinned’. It may be surmised that none of the 2009 appointees was required to apply in accordance with the Legal Professions Act, 1992. All black senior advocates were again deprived of an entitlement while suffering the additional professional injury of being demoted in seniority to the white appointees who were hitherto their juniors.”

Further on, he said: “We senior Negro lawyers might take solace in being in the hallowed company of A F Adderley and say nothing. Alternatively, we can fight for the Bahamas he dreamed of, worked for and invested in. The Bahamas free of racial discrimination, sexism and party political bigotry.”

In reference to Mr Glinton’s application, Mr Gomez said that his “cause is less about a title and more about a community founded on principles of openness, transparency, justice and Rule of Law.

“Ultimately, his application is one to protect the inherent power of the Supreme Court to discipline and control its officers. The function of the courts depends on the existence of an independent Bar with the integrity and courage of that bar to speak to power. That function has been impaired with implications from our current Chief Justice: indeed, he sits there on the back of the past sacrifices of men such as A F Adderley. The Office of Chief Justice ought not to be abused by politically inspired discrimination!”

So, why hasn’t Mr Gomez – in his current capacity – ensured that more women were made QCs? What about persons such as Cedric Parker, who ran for the Free National Movement and others who are perceived to be FNM who are seemingly being discriminated against and not appointed to the Inner Bar based on the political bigotry Gomez spoke about?

Notably, Anthony McKinney was also recently appointed QC. He was named and discussed in the 1984 Commission of Inquiry. According to the December 1984 report of the Commission set up to inquire into the illegal use of the Bahamas for the transhipment of dangerous drugs destined for the United States of America (November 1983-December 1984), Mr McKinney – then a junior attorney in the Office of the Attorney General – made “an arbitrary decision not to prosecute”.

The Commissioners stated: “Apart from these allegations, the evidence indicates that Mr McKinney’s actions in deciding not to call evidence in the case were unusual to say the least.”

According to the Commission’s report: “The Honourable Paul Adderley, the Attorney General gave evidence and said that he gave more than normal attention to the file when it was referred to him for the issuance of a Fiat because of the differing opinions expressed by Mr Evans (Thomas Evans, QC who thought a prima facie case existed) and Mr Smith (Neville Smith – newly appointed QC/former Justice), the Director of Legal Affairs. Being a drug case, he was of the view that the court should decide the matter.

“He stated that apart from the Green Cay case and possibly one other drug case, he did not know of another occasion of a junior legal officer in his department ignoring the directive of the Attorney General … In any event, it is clear to us that if Mr McKinney had conducted himself as a competent prosecutor with doubts about the case, he would have asked for an adjournment so that he could interview the police witnesses and familiarise himself with the facts.

“It is significant to us that Mr Osadebay (then Magistrate, later Justice) stated that Mr McKinney told the court that he had been instructed to withdraw the charges. We believe the evidence of Mr Osadebay and are of the view that Mr Hilton (Langton Hilton, then Solicitor General) was the only person who could have instructed Mr McKinney in the matter.

“The entire sequence of events has led us to conclude that Mr Hilton and Mr McKinney acted improperly and, for whatever motives, connived to bring about the discharge of the five defendants in the Green Cay matter,” the Commission wrote.

Indeed, the system to appoint QCs is tarnished and needs to be reformed. At this rate, that great honour will become a watered-down award and one that young counsel, such as myself, would no longer aspire to attain. It must be taken out of the hands of a self-serving political class, who are keen on carrying on a culture of secret soundings and awarding whomever they deem fit.

In the United Kingdom, the appointment of QCs was suspended in 2003 and it was thought by many that it would be abolished. Then too, questions arose as to the value of maintaining such a system, whether the rank represented a quality mark or merely distorted competition, why there was no peer review or examination before selection and questions were raised relative to transparency and a non-discriminatory process.

In 2004, the silk system was resumed and, after much reform, a nine-member independent panel chaired by a lay person was appointed. That panel features two barristers, two solicitors, one retired judge and three non-lawyers. This panel chooses appointees according to a set criterion and makes recommendations to the Secretary of State for Justice who cannot veto or add to their recommendations.

We need a competency-based selection process and an apolitical panel. Similar to the UK, advocates should be considered relative to several competences, including, but not limited to their integrity, understanding and using the law, arguments, work with clients and so on. Prospective appointees should also be required to render a self-assessment, provide referees who encountered them at work (judges, clients, fellow practitioners, etc) and be subjected to an interview. The new selection process should also be funded by fees garnered from applicants.

In the UK, applicants pay an application fee of £1,800 ($2,750) and, if appointed, an additional fee of £2,250 ($3,435). We should follow suit.

There are many lawyers and members of the wider public who will put an asterisk next to the names of several of the newly appointed QCs for varying reasons.

I believe that all new appointees should have served at least 15 years at the Bar. The appointment of QC should be an accolade only bestowed on those whose written and oral advocacy and professional integrity is noteworthy. Going forward, we must also implement a system of review and see to the removal of any existing QC who simply goes rogue.

Adrian Gibson

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