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Constitutional lawyer suggests legislation to deal with Senior Counsel titles; questions scrapping of QC and KC

A constitutional lawyer has suggested that legislation may be needed to determine which attorneys-at-law are given the title of Senior Counsel (SC), amid the debate regarding the selection of 12 lawyers for the honour.

Garth Patterson SC has also questioned on what authority Cabinet had replaced the King’s Counsel (KC) and Queen’s Counsel (QC) titles with that of SC.

He raised the issues as he and other senior attorneys interviewed separately by Barbados TODAY acknowledged that no legal or constitutional criteria exist for lawyers to qualify for the SC designation.

Their comments come a day after it was reported by this media house that acting on the advice of the Prime Minister, President Dame Sandra Mason had proposed to grant the honour of Senior Counsel to a dozen attorneys, including a government minister, two sitting members of parliament and one former parliamentarian.

Patterson and Hal Gollop SC confirmed that selection is ultimately left to the discretion of the Prime Minister and Patterson further suggested that even the committee which makes recommendations to the Prime Minister has no legislative guidance.

“There is no legislation that supports the committee…. It is an ad hoc committee. There is no legislation to support the formation of the committee or membership of the committee. So all I can say is that the process seems to be ad hoc and the composition of the membership seems to be ad hoc,” the senior counsel said.

Asked what he would suggest to enhance the existing process, Patterson said there would first have to be a legislation framework.

“Secondly, you would have to have clear guidelines and criteria for appointments for the office of senior counsel. You would also have to have provision for independence in the process so that the committee is constituted by legislation for the expressed purpose of having responsibility for applying the criteria by legislation,” he suggested.

Patterson added that the committee should comprise a broad spectrum of society and not be “overly” political.

Gollop did not agree with his colleague that any such legislation is needed.

“There is a strong discretion in the hands of the Prime Minister. I don’t know of any other format by which they may be appointed. There used to be a custom, I believe, that you had to be a lawyer for ten years or more and you had to be a leader…a mentor of younger attorneys. What you need is a system where you are sure that you have people who are highly qualified,” he told Barbados TODAY.

In a notice issued late Thursday, the Government Information Service confirmed that among those in the first cohort of SCs since Barbados became a republic on November 30, 2021 are Minister of Home Affairs Wilfred Abrahams, Speaker of the House of Assembly Arthur Holder, government backbencher Edmund Hinkson, and former member of parliament and government minister Rudolph Cappy Greenidge.

The others are Deputy Director of Public Prosecutions Alliston Seale, deputy chairman of the Employment Rights Tribunal Kathy-Ann Hamblin, former president of the Barbados Bar Association Liesel Weekes, Tammy Bryan, Gillian Clarke, Anika Jackson, Stephen Lashley, and Angella Mitchell-Gittens.

On September 1, almost two years after Barbados ditched the British monarchy as its head of state, a notice was published in the Official Gazette advising that Cabinet had agreed the titles of QC and KC – the latter which was unofficially adopted after the death of Queen Elizabeth II in September last year and her son Charles’ subsequent ascension to the throne – would be immediately discontinued.

However, Patterson contended that Cabinet did not have the authority to make that change.

“It has to be something that is done by legislation and that legislation would give that responsibility to someone. So, there is no legislation in place that governs the process. So, it’s a mystery to me,” he declared.

Meanwhile, attorney-at-law Lalu Hanuman referred to the recent abolition of the QC and KC titles as “a paradox”.

“The paradox is that in abolishing the QC and the KC and replacing it with SC, the feudalistic colonial institution is left very much intact. It’s only those countries that follow the British system of a special category for lawyers that have this absurdity. The very concept is based on monarchical favouritism,” the outspoken lawyer said.

He was adamant that there is no place for “this colonial relic” in a genuine republic.

Last week, after the notice was published in the Official Gazette, Ralph Thorne SC suggested that any genuine reform of the system by which people are given the title must clarify whether it is based on years of service or demonstrated excellence.

“I have been around long enough to know that it has often been a system of reward rooted in particular favour related to image and stereotype. On this occasion, I remember those of worth who passed on and were denied elevation in spite of their professional, intellectual and academic merit,” he had told Barbados TODAY.

“I hope that one day the profession will have the courage to extricate itself from these false paradigms and say whether they wish to reward longevity, or whether they wish to reward excellence. The problem in assessing the latter is that it presents a return to the subjective frailties of those who are given the responsibility to evaluate. The only safe system may be that of acknowledging the virtue of longevity in the law.”

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