Lawyers and Conveyancers Amendment Bill

Part 1 of the Lawyers and Conveyancers Amendment Bill contains particular clauses that the Opposition takes objection to. Part 1 is the part of the legislation that will restore the archaic title of Queen’s Counsel. But, actually, worse than that, it will do two other things that we particularly object to. I can see that there are members on the other side with whom I have discussed this matter, and I hope that they will make a contribution in this debate and that we will hear from the Minister in the chair, the Hon Amy Adams, as well.

The view has been put to me, including by members opposite, that going back to the title of Queen’s Counsel is something that honours our traditions, that the move to sever the title and to replace it with the title Senior Counsel was something that was done by the previous Labour Government without a mandate, that it disrespected those traditions, and that therefore we should be supporting this move. What I want to say is that I am unconvinced, but I do understand the point.

Here are our objections to going back to the old title. First of all, it is archaic. Secondly, we are in the middle of a constitutional review—the Māori Party concluded an agreement with the National Party some time ago; I think it was after the 2008 election—and that review is to look at our constitution and questions like whether or not we should have Queen’s Counsel or Senior Counsel, what the place of the Treaty should be in our constitutional arrangements, whether we should eventually become a republic, what the status of the New Zealand Bill of Rights Act ought to be—all these matters.

I can see that Dr Sharples is in the Chamber. I hope he is going to take a call during the debate on this legislation. I have put the question to him and to his staff, as well as to Peter Dunne, the self-professed republican over there who chaired the last constitutional review that we had in this country. Mr Dunne came up with all sorts of brave recommendations and told his electorate of Ōhariu that he was a confirmed republican and wanted to see New Zealand take the inevitable step toward becoming a republic and severing our ties with the Crown. Perhaps today he is off to a dinner party or some other sort of social event with the Prince of Wales, because it seems to me there is no consistency of principle amongst those people.

Dr Sharples, you cannot support this legislation and be acting in good faith about participating in a constitutional review. This legislation is pre-emptive of that exercise. Mr Dunne, you cannot tell people that you are a republican on the one hand and support this legislation restoring a royal title, a rank conferred by royalty, to lawyers in New Zealand on the other. As was famously said by the Prime Minister in the House a week or two ago, there is a word for that sort of positioning, and it starts with “h”, and it is hypocrisy.

Let us just assume that the National Party and its allies have the numbers to go back to the title Queen’s Counsel. That is democracy, and if that is the case, members on this side will accept that. What I am keen to do is have the argument across the Chamber about the other matters that are dealt with in Part 1, because, let us face it, titles matter. What we call things matters in the end because symbolism matters, but, actually, it is the reality of practice that matters even more.

That is why I have put an amendment on the Table today that would make a couple of changes to this legislation. These changes would leave the title Queen’s Counsel in place. They would not disturb Chris Finlayson’s ardent desire, and his electoral promise of 2008 to the legal profession, to restore the title Queen’s Counsel. I know that he has probably applied already to Judith Collins as the Minister of Justice for his own application for the title of Queen’s Counsel to be processed before he leaves Parliament at the next election, so that he can go out and practise with that title, which he was denied when he applied for it in the ordinary course when he was a barrister, on the basis that he had juniored in too many cases rather than having been senior counsel, which is the required experience for this sort of title to be conferred.

Here is what my amendment does. It says, first of all, that this legislation is wrong to say that it will restrict the award of the title Queen’s Counsel to barristers in practice. Just a little history lesson here: what the original legislation did was it expanded out the way in which this title could be awarded. It replaced the title Queen’s Counsel with Senior Counsel and it said that instead of this archaic, old rule that only barristers sole, who are a tiny fraction of our legal profession, could be awarded the title Queen’s Counsel, or Senior Counsel, basically everybody practising in the profession would be entitled to the rank if they merited it.

This bill will go back to restricting the title to just barristers, although it has weaselly words in section 119C, in clause 6, that say never mind all that. The royal prerogative is saved. So a lawyer who is a particular favourite of the Government and is not actually a barrister practising at the Bar can still get the title. So it is a kind of “We Want to Have the Best of Both Worlds Bill”. What I have done is actually try to get the bill to recognise that reality by, in my amendment, omitting paragraph (b) of clause 4, to recognise the reality that this bill does not really restrict the status to barristers at all, despite Mr Finlayson’s promises to the Law Society. But the real nub of my amendment relates to the changes in section 119C, in clause 6.

The best thing that Labour did, apart from abolishing the archaic title of QC and opening up the status to all lawyers of merit practising, whether they be in firms, at the Bar, in local government, in government practice, or what have you, was having an open appointments procedure. One of the problems that we have in the law in New Zealand is that people who are not lawyers feel locked out. They do not understand how lawyers come to be appointed judges or how they come to exercise the many privileges that they do in practice, and often it is quite difficult to progress a complaint against a practising lawyer because of all the procedures and the rules that need to be followed. It is very difficult to understand how somebody becomes a judge. It is very difficult to lodge a complaint against a judge.

I see my friend Jackie Blue over there, who has taken a great interest in the judicial complaints procedure, and rightly so, because that was another way of opening this whole thing up and demystifying it—something that I am very proud of the last Labour Government for doing, even though it was opposed by the National Party at the time.

So my amendment is another measure in that vein. What it says is that we will keep an open appointments procedure so that we can encourage women, minorities, and all the diversity that we are finally seeing coming through the legal profession, and so that we can see openly whether or not those members of the profession are being blocked from getting this ultimate accolade that we award to lawyers in this country—the title QC, which is now being restored by the National Government.

The way I do it is this. I say that the Lawyers and Conveyancers Act (Lawyers: Senior Counsel and Queen’s Counsel) Regulations 2008, which are the procedural rules made under the Act to govern applications for being made either a QC or an SC, and the rules that are made under regulation 5 of those regulations by the Solicitor-General will remain in force, notwithstanding the passage of this amendment, and, obviously, with necessary amendments, until a further Act of Parliament varies those rules. So if we do get rid of the title SC and retain just QC, or if Parliament does retain the restriction so that barristers will normally be the only people who are qualified to apply to be Queen’s Counsel, then we will still have an open appointment process.

I would really just ask members opposite to consider this amendment if they consider nothing else that I have said in this debate. What is wrong with openness? What is wrong with saying to the public, look, how you become a Queen’s Counsel should be a matter for openness in a free and democratic society. It should not be shrouded in secrecy. It should not be something that the Attorney-General and the Chief Justice get together about in some room somewhere and discuss without a bit of sunshine being shone on the process, in the way that we shine it now pretty much everywhere else in our society except, ironically, on the doings of lawyers. So what I am saying is I would ask members to consider this amendment on its merits. There is no harm in doing this.

I am happy to follow Mr Chauvel in the debate in the Committee stage on this bill, the Lawyers and Conveyancers Amendment Bill. I have listened carefully to his view on the matters that Labour has consistently argued are, in its view, the most objectionable.

I just want to make the point that, in fact, although that is the Labour Party position, it is very much out of touch with both the judiciary and the legal profession, and, I would suggest, the public at large. It is worth remembering that Labour abolished New Zealanders’ right of appeal to the Privy Council, it abolished the awarding of traditional royal honours such as knighthoods, and it abolished the practice of appointing a small number of barristers each year to the rank of Queen’s Counsel. In doing so, it described such initiatives and practices as anachronistic, and Mr Chauvel has just used the word “archaic” again. And, reading from Labour’s minority report, they represent “the bland comforts of the past”. As I say, we have heard more on that theme in the last few moments from Mr Chauvel.

But it is worth noting that the previous Government made each of those changes without a mandate from New Zealanders. One has to wonder why, if the previous Government was so convinced that these institutions had lost their relevance and appeal in contemporary New Zealand society, it was not prepared to test that view by consulting the people. The restoration of the rank of knighthoods and dames by the current Government has certainly been well received, and there is pretty clear evidence from the legal profession that the restoration of the title Queen’s Counsel is desirable, given that Labour’s creation of the title Senior Counsel in 2008 has devalued the role, found little public support or even understanding, and fails to reflect the nature and status of a role that is hugely important within the legal profession.

This change in this part of the bill is about much more than the restoration of a title and status—important as those outcomes are to those who value our inherited traditions from Westminster as much as those other aspects of our blended culture that make New Zealand special and unique. The changes outlined in Part 1 of this bill are designed to protect the essential independence of the Inner Bar. I think that is a matter that Mr Chauvel was not really dealing with. As has been noted, Mr Chauvel, by the Minister and other Government speakers at earlier stages in this debate, the looser rules for eligibility as Senior Counsel, which were introduced by that previous Government, threaten to dilute the independence of our most senior advocates.

Queen’s Counsel should be able to advise and represent both law firms and clients who engage them fearlessly and independently without the potential conflicts and pressures of working in a partnership or an incorporated firm. That is why Part 1 of the bill provides that eligibility to be appointed as Queen’s Counsel will be restricted in most cases to barristers sole, rather than lawyers in partnerships or firms, but the bill does preserve the royal prerogative—and Mr Chauvel was quite disparaging about this—to appoint lawyers other than barristers sole as Queen’s Counsel where that recognises exceptional legal practice. That, of course, is consistent with a very long-established practice, highly recognised and respected within the profession and within the public as a whole, and, I would suggest to Mr Chauvel, something that many, many decades of tradition and practice bear out as being of value. The Opposition may think otherwise, but this would be the case as reflected widely within the profession.

So we are restoring something that is about much more than just titles, about much more than just history; it is about gravitas and the ability within the profession to strike a correct balance. So, with those comments, I am very happy to support Part 1, and I look forward to seeing this come to pass.

Mr Chairman, thank you very much. I presume your emphasis on the word “Honourable” in calling me talks about the fact that we keep certain titles for ourselves in this Parliament beyond our holding the particular rank that might be attributed to them.

I think the comments that we have heard from the Government member who has just resumed his seat, Tim Macindoe, really do sum up the difference between National and Labour very, very clearly. Although the words that came out of his mouth talked about threatening to dilute independence, I actually heard preserving exclusivity, I heard preserving privilege, and I heard preserving the capacity to charge whatever they like for the advice, because, of course, that is the reality of the QC ranking when it is restricted simply to members of the Bar.

I think the framing of this issue as one around independence actually does not stack up when one looks at the nature of the advice that somebody would be seeking. I thought the transfer from the concept of Queen’s Counsel and our tie with the past to the concept of Senior Counsel actually talked about the capacity for somebody to provide advice at a very senior level, and that really does not depend on their being taken from purely the Bar. Why they would have to remove themselves from the legal firm where they are associated in order to become Queen’s Counsel, I believe, represents one of the problems of the past, and does not actually bring forward all of the people whom one would want to have available to provide that very senior level of advice. The Senior Counsel concept did seem to me to resolve some of those problems.

As my colleague Charles Chauvel has stated, under the Lawyers and Conveyancers Amendment Bill only New Zealand, the UK, and a handful of tiny former colonies will retain the rank of Queen’s Counsel. When the member was running through the litany of changes that Labour had brought about in this area, I was saying: “Well, yes, that is great. That is fantastic. We got rid of appeal to the Privy Council.” How many countries in the world have retained the right of appeal to the Privy Council? I think there is about three or four left in the world that have retained it, beyond the UK.

💬 Andrew Little: Bahamas is one.

Bahamas might be one. But the point that I am making is that—

💬 Tim Macindoe: Major constitutional change. You didn’t go to the people.

It was a constitutional change. The point that I am making is that these were positive changes and a break with the past, and I think the sooner that we do actually talk about the serious issues in relation to whether this country should become a republic, the better. I think a lot of people are starting to ask that question. Why are we not going out to the public with a positive position in order to engage the public in this most fundamental of reforms?

I believe that going back to Queen’s Counsel now creates a worse problem than existed before it was changed, because it means that there is going to be a to-ing and fro-ing. Every time there is a change of Government, we are going to take it forward, and if National becomes the Government, it is going to take it back. I do not believe that that is actually in the interest of developing our own, independent status as a nation. I believe that it is really important that we do try to see our way forward into the future.

The thing that I was concerned about, and that my colleague seems to have addressed in his amendment to add section 119C(3), is the question of the appointment process itself. The appointment process, of course, once it goes back to the way that it was before, naturally shuts it down. I think the member Tim Macindoe himself said that it creates, you know, confusion in the public—that the public have no idea, that they know what a QC is but they do not know what a Senior Counsel is. I think that is nonsense. I think the person on the street has no idea what a QC is compared with any lawyer, either, other than that a QC charges a humungous amount of money and you might as well have one on your side if you are being sued for defamation by somebody who has got one representing them on the other side.

💬 Hon Clayton Cosgrove: Judith!

Well, I presume that certain Ministers do actually use QCs in order to support themselves, whether they are defending themselves against a potential defamation, or whether they are promoting the idea that some comments might be regarded as defamatory when I think they are the only people in the country who would think that. But that is by the by. There is a significant element of exclusivity and privilege, I think, associated with this whole question of Queen’s Counsel.

There are a number of counsel at the moment who do not actually want to go back to the old way of doing this. They do not want to go back to the old definition of Queen’s Counsel, or King’s Counsel as it will be, I think, some time in the future.

💬 Hon Clayton Cosgrove: In Gerry’s case, KFC.

I do not think I will repeat that, Mr Cosgrove, but thank you for your amusing interjection. I think it will find itself now recorded in Hansard without my having to repeat it.

💬 Hon Clayton Cosgrove: The clansman.

If you think of any more, I am happy to call upon the—

💬 Hon Clayton Cosgrove: The big chief of the highland games.

I do not think we will talk about the clansman, because that is probably a bit unfair.

But, leaving that aside, the point I am making is that what the honourable member Charles Chauvel is attempting to do is to make sure that with the amendment that, obviously, the Government is going to push through—with our maintaining our opposition throughout—we do not wholly do away with the question of preserving the openness in the appointment process. I think that my colleague makes the point that whether the appointment is statutory or a prerogative process, our requiring the existing open procedure required by regulations and guidelines to continue to be followed, with necessary modifications, really does state for the public that the process that was put in place by our Government will be the one that will still prevail. I believe that that is a small amendment that we can make to an otherwise unfortunate change that the National Government wants to put upon us.

I do think there ought to be better debate around these sorts of issues, as well, because when one looks at where New Zealand stands in the world, and whether these issues are going to be truly debated, I do not think I heard anything from the Government side as to why we should restrict the appointment of Queen’s Counsel to the Bar. I think that if the Government truly believes that that is in the best interests of ensuring that our Queen’s Counsel are broadly representative of the legal profession as a whole—which, of course, has changed over the years since I was admitted to the Bar. I think it certainly has changed in terms of the greater number of women, obviously, who have been admitted to the Bar. But, again, when you look at different elements of the profession, women are still underrepresented. When we look at barristers sole, we find that it is a male-dominated element of the profession.

By pushing back to Queen’s Counsel, or reverting to Queen’s Counsel, and moving away from the concept of seniority, I think we do a great disservice to those who will be looking for the quality of representation that one would expect from Queen’s Counsel. I think it is a retrograde step and I do believe that we are in danger of seeing important constitutional issues becoming this political football—pro, anti, pro, anti. When National is in Government it gets reverted back to the way it was; when we are in Government it gets promoted to the way it should be. I think we have got to really seriously think about whether the legal profession would want to see that continue to happen. I do not believe that it is in the interests of the quality of the work that we are all saying we are seeking to achieve to have this to and fro arrangement.

I believe that our Government very firmly stood for making sure that we could stand alone as an independent nation. We did not have to have the final right of appeal to the Judicial Committee of the Privy Council, comprising mostly British judges and sitting away on the other side of the world, in London. We did not need to have the award of knighthoods and other honours of English origin, and, of course, that annual practice of appointing a small number—

I would like to rise to take just a very quick call on Part 1 of the Lawyers and Conveyancers Amendment Bill, to go through some of its constituent parts, and to restate the Green Party’s opposition to this bill. It is clause 4 that sets out the main purpose of Part 1, which is itself really the main purpose of this part of the bill. It tells us that the bill seeks to amend the Lawyers and Conveyancers Act to reinstate the title of Queen’s Counsel and to restrict eligibility to that title to barristers sole. I have to agree with the Hon Lianne Dalziel and Mr Charles Chauvel, who spoke earlier on this. It is a very retrograde act. It is a move to reinstate an anachronistic title that seems to limit New Zealand’s independence and send us back half a century, at least, to the days when we were solely reliant on the British Crown for validation, which is a bit embarrassing, frankly.

Although one could imagine different practical considerations around the procedure for appointments, as set out in the provisions of new section 118 in clause 6, we have not really heard a sound, practical argument for the title of Queen’s Counsel itself to make a comeback, and one really has to ask oneself, is this the single biggest priority in the justice area that this Government should be dedicating time to? It seems that New Zealand is facing all sorts of challenges, and yet what the Government comes up with is returning this anachronistic title—a throwback to the monarchy. It just seems a little bit irrelevant, and, frankly, I think that the New Zealand public could expect a little bit better from this Government than simply dedicating time to a small group of privileged, high-paid—an exclusive group of lawyers who for some reason are going to be given this title, Queen’s Counsel, which simply is not moving us forward in the direction of an independent New Zealand, one that is not so focused on these ancient hierarchies.

There is simply no call to amend sections 118 and 119 in the principal Act, and, although the Law Society submission pointed out that there was an original lack of clamour for the change in the first place, it was a policy decision, one that came from a proud assertion of New Zealand as independent and willing to embrace a future where we no longer rely on Britain for authentication. It was not a particularly radical policy in the first place, but I think that it was important and symbolic. Similarly, clause 6, in amending sections 118 and 119 to bring back the title of Queen’s Counsel, is light on clamour but strong on symbolic policy. I accept that the Government members probably feel strongly about this, but I doubt that the public of New Zealand really sees this as a priority, and I think that it is a bit unfortunate that we are taking up time in the House for this legislative ping-pong game between the poles of independence and a return to the monarchy.

I would also just add one other point, which is that I appreciate the endeavour that Mr Chauvel has made to open up the process of appointment and make it less exclusive and more transparent, and for that reason, although the Green Party is not supporting the bill, we will be supporting the amendment put forward by Mr Chauvel. I thank him for his contribution to this, because I think it is a positive contribution in what is otherwise a pretty sad, pathetic, old sort of bill that is taking up our time.

I think this bill should be retitled the “Lawyers and Conveyancers (Elitist Purposes) Bill”, because—

💬 Tim Macindoe: We’re not on the title, Denis.

We are not on the title? But, nevertheless, that should be what its title is because that is what it is. It takes us back to when Queen’s Counsel were appointed by a mysterious, non-transparent process, with all the suspicion of inappropriate influences and political influence that that involves. New Zealand First therefore opposes this legislation. It is not good for the legal profession in practice or for its reputation. It is not good for the community or its understanding of the profession. It is about the National Party’s philosophy and ideology, where it appears that elitism and cronyism are celebrated.

What it is about most is going back to the past instead of moving to the future. New Zealand will be moving backwards with this legislation when all comparable jurisdictions have moved on with a more modern and relevant approach to the issue of acknowledging senior practitioners, and I refer especially to Canada and the Australian states, or most of them. In fact, I question whether it is actually really even necessary to award either Queen’s Counsel or Senior Counsel titles in this country, because in these days it is generally accepted that markets should be free of discriminatory and anti-competitive rules imposed by Governments. National, I would think, usually supports that sort of approach, so why the aberration in this case? National has simply got it wrong, and it has got it wrong for all the wrong reasons. It is wedded to the past and it is not future-oriented.

However, if we are to persist with the ranking of legal practitioners in this way, rather than to rely on reputation and the market, then it is important to define those members of the profession who have achieved a level of experience and competence in an area of expertise that should be officially acknowledged on a fair and transparent basis. The current legislation goes a long way to achieve this and should not be repealed. Therefore, to assist in the operation of the legal system, the current legislation should be maintained and this bill should not be passed. The acknowledgment of highly regarded and experienced practitioners with special expertise should not be about status or reward or cronyism in the way that it has too often been in the past, and it should not be seen in the same way as the award of knighthoods and honours are generally seen. New Zealand is no longer—since 1947—a British colony, with all of its traditions and peculiarities. It should not simply allow commercial advantage by one practitioner over another, as this bill would do. Our system must be fit for our needs and be relevant, useful, and fair in the selection process, and it must be transparent.

The bill, as presented, does not appear to be designed to achieve any of those things. It appears to be designed to perpetuate elitism as distinct from “meritism”, by which I mean the recognition of a status well earned instead of one simply awarded in the manner of some sort of an honour, or, worse still, some sort of a favour. Under Part 1, the term Queen’s Counsel returns again to replace Senior Counsel, and I think that is unwise. Contrary to what Mr Macindoe said, I think the public can more readily understand the term Senior Counsel, but usually do not understand the term Queen’s Counsel. I think that “understandability”, for the public, is an important issue, and it relates to the reputation of the profession. People tend to think that the term Queen’s Counsel still means a senior barrister who has the function of supporting the Attorney-General, as it once was. That is far from the situation these days. The term Senior Counsel is more descriptive and does not have the connotations of some overhang from the old English legal system and our colonial past.

New Zealand not only needs a thoroughly modern legal system, it needs to be seen as such. None of this is assisted by the term Queen’s Counsel, and Senior Counsel is clearly better; nor does the assertion that somehow the reversion to Queen’s Counsel will enhance the independence of the profession. If independence means independence from the Crown—in New Zealand meaning, effectively, independence from the Government—then this bill is more likely to do the opposite by restoring the old system under which the scope for political and other influences is actually worse. Concerning eligibility, it is not clear to me why only barristers sole are favoured to be eligible. Others should not be excluded if they practise in law firms, whether incorporated or not, as is allowed in comparable jurisdictions, and others should not be excluded if they are barristers and solicitors. The position relating to that is so different from what it is in the UK that that comparison does not bear scrutiny.

The strangest section is new section 118A(2), in clause 6, which appears to override the other sections and reinstate a general royal prerogative. That seems to me to have no substantive reason for such a leap backwards. Why should there be a need in this day and age for such a general provision? The royal prerogative in New Zealand really means Government prerogative, and that is not appropriate. It brings in all the old problems of unfairness, discrimination, anti-competitive behaviour, and the scope for cronyism and bad process that will be entrenched by this bill. It is, therefore, thoroughly objectionable, and will actually need to be repealed if it is now passed. The need for transparency has also not been achieved in this bill and that is what modern best practice requires. We ask these days in all other professions for people to have transparent processes. Why, then, would we reinstate the exact opposite with regard to Senior Counsel in this country?

New Zealand First, therefore, objects to the entire concept of this retrograde bill. It is misconceived and is a step back to the bad old ways. It is a barrier to the development of a modern legal system. It is devoid of proper processes. It is unnecessarily restrictive. It is based on discrimination for no good reason. The object should be to define senior practitioners in specialist areas so that the public and other members of the profession are assisted in knowing to whom they may best go for specialist services. If that is not the objective, then there is no reason at all for either Queen’s Counsel or Senior Counsel, for that matter.

Anyway, however you look at this bill, it is a thoroughly bad bill. It will create bad law and should not be passed. Indeed, if it is passed, then it will be incumbent upon some future Government to return back in the future and repeal it.

I am pleased to speak to the Committee stage of the Lawyers and Conveyancers Amendment Bill. I was not part of the select committee that listened to the submissions, the Justice and Electoral Committee. In fact, I think there were about six submissions, and the select committee listened to the debate—the pros and the cons. Essentially, Part 1 restores the title of Queen’s Counsel. That seems to be one that has been welcomed by the profession. I took the time to go to the Bar Association’s submission. It summarises, and quite clearly states, that “The Bar Association supports the intentions of this bill because it restores the historical status of the rank of Queen’s Counsel in New Zealand.” The interesting thing is that the New Zealand Law Society made the comment that the changes were largely policy-based, in that the revert back to Senior Counsel had been policy-based and ideological, and not a response to any call for pressing change. That was very interesting, I thought.

I think it is important that the select committee did listen. It listened very carefully to the debate—the pros and the cons. Part 1 specifies in new sections 118 to 119C the reinstatement to Queen’s Counsel, which certainly does provide a recognition of seniority, of a certain standing of practice in this country. It also allows for independence of that practitioner. I think that new sections 118 to 119C specify quite clearly the position of a barrister sole, the eligibility criteria, and so forth. I think this is not a retrograde step. This is one that is going to restore the profession’s standing in the eyes of the public, and that can only be a good thing. Thank you.

It is a great pleasure to take a call on the Lawyers and Conveyancers Amendment Bill. What is very clear is that for the sake of a robust democracy and for the sake of the rule of law in a democratic country like ours, having a high-standard, high-standing professional Bar is absolutely crucial. Having a body of advocates who can take cases, whether in the criminal jurisdiction, the civil, or any other, and represent people fearlessly and without favour before Her Majesty’s judges—and before anybody else, if they so wish—is absolutely crucial to ensuring that people’s statutory and common law rights are observed and respected, and that justice is able to be administered properly and fearlessly. So in that context, and with the amount of law that we have—statute law and common law—having a legal profession that is well led, and that has men and women of standing, substance, and intellectual capacity, is very important. Having a means by which we recognise those who are excellent performers and top performers in the profession not only gives confidence to those who are dependent on their advocacy and their services but also is important—it is absolutely crucial—to the administration of good justice in the country. So this bill touches upon a very important aspect.

I agree with my colleagues who have participated in the debate so far that most members of the public would not know what the distinguishing features or factors are between a QC and any other member of the legal profession. When people get into trouble, or get into conflict or a dispute, they want someone who will represent them. They are not particularly fussed about the letters after their name—except, of course, when the invoice arrives. Then, of course, it does become very important.

I want to say that we have been very well served in this country not just by the legal profession at large but also by the senior advocates within it. We have tended to recognise those senior and outstanding advocates—those who engage in excellent advocacy in the court—by conferring on them this title, which was once upon a time QC, King’s Counsel before that, and, more, recently, SC, Senior Counsel.

In my experience I have come up against and I have dealt with many excellent holders of the QC title. I think of people like Kit Toogood, who was outstanding in the employment field and who is now on the bench. I think of someone like Simon Lockhart, to whom I juniored in my first ever jury trial, who was most influential in education, and people like George Barton QC, who brought great intellect to the field. I think of women like Kristy McDonald and Denise Bates. More recently, I think of Harry Waalkens, who cross-examined me at length on behalf of Air New Zealand once. Two days later we settled the case on terms favourable to the union. I think of David Goddard, and, I must say, more recently an outstanding QC, in my view, Nigel Hampton, who represented the Amalgamated Engineering, Printing and Manufacturing Union and the miners in the Royal Commission on the Pike River Coal Mine Tragedy, and who is now representing one of the victims of the Christchurch earthquake and the collapse of the CTV Building. He is a most compassionate humanitarian in his advocacy and in his work, and in his community work too. And then, of course, there is Paul East, who is a friend to all of us. But one of the QCs whom I have come across and whom I appeared opposite, but whom I expect to have contact with very soon, is, of course, Julian Miles. He is a very good performer in the court, and a very good advocate. We will see how he goes, of course, in proceedings in which I am involved, along with my colleague Trevor Mallard and, indeed, a well-known Cabinet Minister.

But, outstanding as all these representatives are, as outstanding as all these counsel are, one of the great virtues of the reforms that the last Labour Government led was that they allowed those who had won the respect of the profession and the right to have the title conferred on them of Senior Counsel to be drawn from a much wider berth. I think that was the good thing about it. The truth is that there are outstanding advocates who are not members of the so-called independent Bar. The two points I make about that are that, firstly, I know, because I have dealt with them in the employment field, members of the so-called independent Bar are embedded, to use a military term, in the commercial companies on whose behalf they are acting. They have a letterhead that suggests an independent chambers, but when you look closely at the address and when you meet them, they are actually at the commercial premises and the head office of the company for whom they are acting. That is one side of the independent Bar.

The other is that law firms themselves, certainly in their senior ranks and the senior partners of law firms, produce some, frankly, top performers. I think of people like Jack Hodder, who is a great constitutionalist, a great public lawyer, and a great partner of a law firm. Then I think of people like Mai Chen as well, who, similarly, is a partner of a law firm, but it would be hard to describe her as anything other than totally independent and fearless, on whichever side of the fence or the argument that she is advocating. So there is simply no call, there is no logic to the argument, that reinstating the rank of QC is about preserving the independence of the rank or elevating the independent Bar. It will not do that, because the independent Bar stands apart, we know who the top performers are, and they can be recognised irrespective of where they are in the profession. So it will be disappointing to take that backwards step.

Then, of course, the other rationale for this change is that we want to restore in name, at least, the links to the Crown or to the monarch. Well, we have been moving gradually away from that in so many other respects, and, much as we respect the role that the monarch plays in our constitution, the truth is that we have been increasingly independent as a nation—a genuine dominion, as we aspired to be at the beginning of last century, but genuinely independent, and it is disappointing that by reinstating the title QC we are taking that backward step. Notwithstanding that part of it, there is no question that there are important ways in which we can recognise those who are at the top of the profession and those who are excellent advocates without having to confer on them some mythical link to the Crown.

All those QCs, those respectable men and women whom I adumbrated just now, are people I have met, none of whom were representing the Crown when I worked with them, appeared opposite them, or did whatever. They were acting either in commercial or in public good capacities, and so they should—so good advocates should. That rank was conferred on those senior practitioners who had displayed an ability to argue both sides of difficult arguments, who had shown a willingness and an ability to take on what were often unpopular cases and put up with the public opprobrium that went with them, and because they could demonstrate how well they could perform in the profession—then they were conferred that title. Well, the only thing that the title gives now, really, is a marketing advantage, and, of course, the privilege that goes with being able to invoice at a much greater rate. I know a QC who today invoices at the rate of $14,000 a day. That is what QC-ship confers on someone, and it simply should not be that.

Let us recognise the top performers in our profession, recognising how important that is, but we do not need to do what this bill provides for. It is a backward step. Let us embrace modernity, let us move forward, and, for the profession that has modernised itself so much, let us continue with what we have and recognise all top performers, not with an anachronistic title but with a title that represents modern New Zealand.

It is a privilege to rise and speak to the Lawyers and Conveyancers Amendment Bill. I have a question at the outset of my contribution to this debate, and my question to the Government is simply this: is this the brighter future? Is this what National members meant when they campaigned on that slogan of a brighter future—taking us backwards with archaic references to privilege? That is what this bill, in fact, does, and I am proud to stand up and say that Labour opposes this bill. We oppose being dragged backwards to an area of privilege and archaic protection. That is all I can see in this bill, and I do not think it represents at all that idea that the Government was trying to convince the country of, which I think it is finding it harder and harder to maintain these days, which was that somehow it had a vision of this modern, this new future, a vision going forward when, in fact, here it is, once again, bringing in—and wasting the time of this Parliament with—a piece of legislation that actually takes us backwards.

It takes us backwards in a direction that I know that the Labour Party does not stand for. It takes us back into an area of snobbery—that is the best word I can use to describe this, actually. It uses Parliament’s time to change back to an old title, and I have yet to hear any Government member give us the evil that we are trying to fix here. What is the wrong that this bill is trying to fix? I have not heard one example yet from a Government member opposite about what the problem is—the practical problem, the really practical problem that everyday New Zealanders come across that is going to be fixed by changing the title Senior Counsel back to Queen’s Counsel. What is it, what is the evil, what is the wrong, what is the problem that this is trying to fix, because I cannot see it.

It was interesting to see that one of the few Government members who has taken a call on this bill was Tim Macindoe from Hamilton. I am really surprised to hear Tim Macindoe get up and make an impassioned speech on this. I do not think that this is what the people of Hamilton West sent him down to Parliament week after week to do—to get up and argue for privilege, as this bill does, and for snobbery, and for $40,000 a day, because we heard from my colleague Andrew Little that this title of Queen’s Counsel apparently allows people to charge up to $40,000 a day for ordinary New Zealanders to use their services if they have this title after their name. Well, that is not the vision that I have for the future of this country. But it is now showing quite a trend from this Government, because just a few weeks ago it was protecting privilege by spending taxpayer money to bail out Wanganui Collegiate School. It was doing that just days after it had cut funding for special education schools—close down special education schools, but put taxpayer money into protecting privilege through taxpayer money to keep Wanganui Collegiate School going. This bill reflects exactly that same situation, that same snobbery that comes from the National benches opposite.

And here we are in the lead-up to the final weeks before Parliament rises before Christmas. What is it in the justice portfolio that the Government thinks is most important to spend its time on? Well, today it is changing a title. It is changing a title for legal representation, and in changing that title it is spending time—taking up Parliament’s time—to do something that is unnecessary. If we kept the title as Senior Counsel, there is a particular part of this bill that we would not even need any longer. The title Senior Counsel does not actually reflect gender, and—this is unusual for me—I am going to argue here that we are doing a disservice by reflecting gender in this piece of legislation. By changing back from Senior Counsel, which does not have any gender connotation to it, to Queen’s Counsel, we have to draft up, and spend this country’s money on actually changing, a part of this law, because if suddenly we did not have a queen but we had a king, we would have to have a new section. We have to have a provision in here to take account of that change in gender of a ruler in a distant land.

Kia ora, Mr Chair. Thank you very much for the opportunity to contribute in the Committee stage of the Lawyers and Conveyancers Amendment Bill. This is a constitutional issue, and I actually do want to reiterate what my colleague Charles Chauvel said earlier in terms of this debate, because when you look at the history that started for us in 2002—yes, when we were in Government—there was a decision by Cabinet at that point in time to not only rename Queen’s Counsel but also look at the eligibility of that very privileged and special role within our society. So for us it was about creating the opportunity for all litigators, not just barristers sole, to have the opportunity to represent what is the highest office, I believe, for the legal profession. And why did we do that? I think we did that, actually, as a deliberate attempt to try to carve out for ourselves our own national identity as an independent country in a world where we have to recognise, and we will always recognise, that we were colonised by the British, and that we are part of the Commonwealth. It was actually starting to forge some of our own national identity. Within the framework of that debate and discussion, we decided that this was an area that we needed to reform. So we did create the title of Senior Counsel and we did change it from Queen’s Counsel, and I think we should remember that.

When I looked back at some of the debates—for example, those that occurred in 2005, when the Lawyers and Conveyancers Act came into force—it was very interesting to note that the Law Society, at that point in time, actually agreed with the change. It agreed with the fact that we should be enabling all of the people within the legal profession to have the opportunity. So the two primary drivers when we drove the change were about renaming it but also about the eligibility. It was a move towards New Zealand’s independence, as has been spoken about previously.

We did follow the UK and we followed Australia, and it is interesting when we look at other Commonwealth countries—for example, we have Senior Advocates in India, we have Senior Counsel in South Africa, and we have President’s Counsel in Sri Lanka. What we started to undertake was something that a lot of other Commonwealth countries had started to undertake, which was to actually look at what this role represented, or what this role was empowered to do, within the context of New Zealand being an independent sovereign nation. I guess that within modern democratic societies, and in a society such as ours, those are some of the challenges that we will face in the future. We do have to recognise in this discussion that we do have a constitutional reform process under way.

So when we look at the retrograde aspect of this particular piece of legislation, you do have to wonder where the motivation came from to put this piece of legislation through the House. It seems that it was initiated by the Attorney-General, the Hon Christopher Finlayson, in June 2009. So there was a commitment by the Government to do that, but I am not really sure why it would do that within the context of us as a country having these big discussions about the constitution of our country—the place of the Treaty of Waitangi, for example. What sort of a State do we want to create for our children of the future? It does seem to be a little bit at odds that we would be discussing a bill such as this within the context of that discussion.

I was in the House when the Oaths and Declarations (Upholding the Treaty of Waitangi) Amendment Bill was debated last week. It seemed that that was the primary rationale for National members not supporting the honourable Te Ururoa Flavell’s bill—it was because we were in the middle of a constitutional review. So they decided we should wait for that constitutional review to take place to then allow, for example, us as members of Parliament to decide, when we swear an oath, whether to also swear to uphold the principles of Te Tiriti o Waitangi. So that was a really interesting, I guess, principle to make a decision on, and it seems that that principle is completely transferable within the context of our discussions around this bill.

It has been interesting to hear the various contributions in this debate on Part 1 of the Lawyers and Conveyancers Amendment Bill. I would like to begin by just acknowledging the Green member Julie Anne Genter and thanking her for her party’s expression of support for my amendment.

Just to pick up some of the points that have been made in the debate to date, the first speaker for the Government side talked about why this legislation is important from the point of view of restoring the independence of the senior Bar. But we have never really heard how that is to be brought about by this legislation. We have never really heard how the legislation creating the status of Senior Counsel and permitting lawyers who practise in firms in New Zealand, and others, to be appointed to senior status threatens the independence of the Bar.

Here is the point. All lawyers in New Zealand, be they barristers, or barristers and solicitors, or solicitors only, are subject to the same set of ethical obligations. The bar is set high on those standards. It does not matter whether one is practising at the Bar solely or in a firm. The same rules about conflicts of interest apply. The same rules about whether one is required to disclose a matter to a client apply. So this old-fashioned contention that somehow restoring QCs in the way that this bill would do preserves or enhances or restores the independence of the most senior of our lawyers by restricting the appointment to barristers only has never been proved.

There has never even been an explanation of that point from the Government and its sponsors. It is wrong. I suspect that the reason it has been advanced is that it is easier than saying “Well, we want this because it’s a nice way to preserve our monopoly.” That is really all that restricting appointment to the rank of QC to senior barristers will do. It will, as my colleague Lianne Dalziel said, from the moment of appointment enable them to charge a lot more because they have been recognised in this way.

The amendment that I have put forward does something important. It preserves the independent appointments procedure that currently exists for Senior Counsel. We accept that the Government has the numbers to do this—to put QCs back into the system—but we are asking whether or not Government members would at least consider with an open mind the benefits of keeping a bit of sunshine on the process.

Jackie Blue and Katrina Shanks and others will be interested in this little anecdote that I am about to relate. Recently a friend of mine joined chambers. He is a barrister. He is a good barrister; he is in good chambers. It was a nice thing to be able to go and celebrate with him. A number of other lawyers came up to me during the course of the evening and said to me “We’re really concerned about two aspects of this legislation. First of all, the restriction of the rank to barristers rather than to include practitioners in a firm, and we’re worried about going back to an old murky procedure—the old boy network.”

Guess what gender these lawyers were? They were my female colleagues. They said these things for this reason. It is much easier as a woman practising in the law to practise in a firm, partly because if you have ambitions to have a child, firms tend to have provisions around parental leave and around flexibility of work conditions if people want to try to combine family life with practising in a firm.

The Bar does not have that, and here is why. If you are going to be at the Bar you have to be what we would call in ordinary parlance an independent contractor. You cannot be employed by anybody. You cannot be in a partnership. You cannot form a safety net or pool your risk. You have to be on your own in terms of employment status. That is why we have had so few senior women in the profession reaching the utmost heights of SC or QC-dom, even though for probably 10 or 15 years now fully 50 percent of the graduates from our law schools have been women. It is really, really hard.

So to restrict the status to barristers sole and to go back to some murky appointments procedure where nobody really knows how you become a barrister—just that it has something to do with being on good terms with the Attorney-General, or the Solicitor-General, or the president of the Law Society, or a senior judge—is going to inevitably have the effect that fewer women are going to get appointed to the status. We are going to have less diversity at the top end of our legal profession.

All I am saying to members opposite is that if you think those are bad ideas, then you can let Chris Finlayson have the victory of going back to the title of QC. If you believe that that is a good thing you can have it, but by adopting my amendment, what you could also do is preserve the openness of the appointment procedures that we now have. You could actually help keep a bit of diversity in the senior levels of the Bar, rather than going back to the bad old days of the old boy network, which will inevitably happen if the legislation passes in its current form. And do not take my word for it; take the word of the people who came up to me recently at the event that I have described to you and listen to the fears that they expressed.

Dr Blue said: “Well, you know, this isn’t a bad thing, because the Bar Association asked for it.” With respect, Dr Blue, that is a bit like senior specialists in a particular medical profession saying “We would quite like not to have to be subject to a particular disciplinary regime, because it restricts our independence and our ability to apply best practice in our particular field.”

Of course, the union, the professional association representing a particular group of people, is going to want what is best for that group of people. That is its job. That is what it is doing when it puts that sort of submission forward. It does not mean it is in the public interest. It does not mean that the association is thinking about how best to preserve diversity at the most senior levels of our profession. It does not mean that it is thinking about how we ensure that the best public confidence exists in our senior lawyers by ensuring that they are appointed openly to a particular status and that they are appointed from as wide a background in the profession as possible, rather than restricting them to the Bar, where, just by economics, only a certain type of practitioner in New Zealand to date, in general, has been able to flourish. That is really all I am asking members in the Committee to think about. As I say, I thank one party in particular for having taken on board this idea. I hope others will consider it with an open mind.

Finally, I would just like to try to make a bit of an appeal to logic. We have talked about how the bill will generally revert to a system where only barristers can be made Queen’s Counsel. And yet there is a provision in section 119—119C, I think it is—in clause 6, that says that none of all that really matters because the royal prerogative as to the appointment of Queen’s Counsel is preserved by this legislation. That is the provision under which Paul East had himself appointed Queen’s Counsel before he went off to argue the French atmospheric testing case in the world court.

Presumably, that is the clause upon which will be relied to make Mr Finlayson a Queen’s Counsel, because under the statutory procedure he is not practising as a barrister. He is a member of this House, and he is excluded, as far as I can see, by the provisions of the bill. So even under this legislation the Government has got a “Well, we can do whatever we like.” clause. To me, that undermines the logic of the position that Mr Macindoe took earlier—that somehow this legislation is vital to restoring the independence of the senior Bar.

Well, that cannot be if the Government is still going to have an out clause allowing it to invoke the royal prerogative at any time, which means that the Attorney-General can go off and see the Governor-General at any stage and say “Sir, I advise you to appoint the following people to the rank.”, whether or not they are solicitors, whether or not they are working at a senior level in local government, whether or not they are the chief legal adviser in a particular Government entity, and whether or not they are a sitting MP. That is the flaw of this bill, and it is why I am trying to get some better sense into it.

The question was put that the amendments set out on Supplementary Order Paper 136 in the name of the Hon Judith Collins to Part 1 be agreed to.