Lady Deborah Chambers KC does not shy away from a fight, which is, one supposes, rather the point of her opinion piece. Writing in the New Zealand Herald this week, the Auckland barrister and silk delivers a crisp, combative argument: the KC rank exists to signal courtroom excellence, full stop.
The 2019 addition of a mandatory “access to justice” criterion, introduced under Attorney-General David Parker and Chief Justice Helen Winkelmann, has in her view corrupted that signal, introduced perverse incentives, and quietly turned a hard-edged professional distinction into something closer to a virtue badge.
The Chambers piece and makes real points. The core tension Chambers identifies is genuine: there is a consumer-protection rationale for KC that has nothing to do with pro bono hours.
When you are staring down a serious criminal charge or a corporate crisis, you want the letters KC to mean something precise. If they come to mean “this person held the right community law centre brief,” the signal lacks impact, to say the least. That argument deserves to be taken seriously.
The history she omits
A pointed response circulating on LinkedIn from barrister Chris Patteron (pictured) cuts to the quick aruging that the suggestion that KC appointments before 2019 were grounded purely in advocacy merit is, as the response puts it, “objectively difficult to sustain.”
Proximity to senior judges. Membership of the right chambers. Gender diversity considerations. These factors, the response notes, “have over the decades plainly played a role in appointments. None of those is a merit factor or criterion in the advocacy sense.”
The observation is pointed partly because Chambers herself, then a mere Deborah Hollings, was appointed silk in the 2007 round. That round, the response notes, was overseen by Dr Michael Cullen as Attorney-General, a man “understood to have shown limited personal engagement with the process.”
Several of those appointed that year were later elevated to the bench, including one now sitting on the Supreme Court which may speak to their calibre, but not necessarily to junior bar courtroom excellence as the singular qualifying factor.
The broader point is that the meritocracy of pre-2019 silk appointments may always have been more textured, and more political, than Chambers’ piece acknowledges.
The access to justice criterion issue
Deborah Chambers’ specific objection to the 2019 criterion rests on three planks – that it can elevate candidates with strong pro bono records over those with superior advocacy; it bears disproportionately on younger women building practices during child-rearing years; and it encourages candidates to game the system with “tick-box” community work, quietly abandoned once the letters arrive.
There’s no doubt that each of these has genuine force. The point about younger women is particularly sharp. The years when a barrister sole must build the high-complexity, high-volume practice necessary to be considered for silk are precisely the years when additional unpaid commitments land hardest. That is not a small structural problem.
But the LinkedIn response raises an equally important counter: the criterion’s addition did not, of itself, diminish the rank. The question is whether its operation in practice has done so and on that question, the evidence is largely anecdotal.
Feedback along the lines of “you haven’t done enough pro bono to become a KC” is talked about in the profession, as Chambers notes, but talked about and documented are different things.
The honour creep problem
Where Chambers is on firmer ground — and where less pushback has been offered — is in her criticism of KC appointments to legal academics, Chief Parliamentary Counsel, and former Attorneys-General. These are accomplished people. They are not, however, the people you ring when your liberty is on the line.
If the state wishes to honour distinguished public legal service or academic excellence, it has the mechanisms to do so: knighthoods, CNZM, or, as Chris Patterson tartly suggests, perhaps a new classification of Senior King’s Counsel for those anxious about sharing the rank with pro bono practitioners.
The suggestion has a deliberately reductionist edge, but it makes the structural point: if the existing rank is being asked to carry too many purposes, perhaps it needs either clarification or subdivision.
The process problem
Both Chambers and her respondent circle around something that neither quite names directly: the KC appointment process in New Zealand has long suffered from opacity. The “secret soundings” that Chambers mentions remain embedded in the system. Judges retain significant influence over who is considered worthy. The criteria are assessed without a structured, transparent competency framework of the kind England and Wales introduced when the Queen’s Counsel system was reformed.
That reform process, which did include leadership and diversity dimensions without making them mandatory pass/fail criteria, represents a more defensible model than what New Zealand has constructed. The English system has not been without its critics, but its competency-based framework at least reduces the degree to which individual judicial preferences operate invisibly.
The verdict
Chambers’ piece is braver than most commentary about the KC system because it names a structural problem rather than circling it diplomatically. Her core concern, that the rank’s consumer-signal function is being diluted, is a fair one.
The access to justice criterion, as currently framed, does create distortions and the burden is not evenly distributed across the bar.
But the piece undercuts itself by presenting the pre-2019 system as a reliable meritocracy from which New Zealand has fallen away. It wasn’t. The bar has always known that the path to silk ran through particular chambers, particular relationships, and particular forms of institutional visibility that had nothing to do with how well you cross-examined under pressure.
The honest reform conversation is not about restoring a golden age of pure merit. It is about whether New Zealand is ready to build a KC appointment process that is genuinely transparent, genuinely competency-based, and governed by criteria that are coherent rather than merely aspirational.
That conversation is harder and longer than the one Chambers has started but it is the right one to have.
