Unlike the livery companies whose trade has melted into history, we remain relevant, to the administration of justice and the profession of advocacy. Are we also though to become a charitable, but also happily sociable organisation, offering education and financial support for aspirant but uncalled barristers and remarkably impressive educational facilities for our members? For some, that is and will remain the main function of the Inn, and although limited, it is a fair vision.
But perhaps the starting point is a little broader. In my opinion the Inn must, so far as practicable, represent the interests of all its members, including those who have been Called and are in practice. And I make no bones today about the particular area of membership I have in mind. We cater marvellously for the members who have not been Called, and happily and warmly for those who are senior enough to become Benchers, many of whom it is worth adding, work tirelessly for the Inn and its other members. But for the rest? Not so good.
We should not merely address issues raised today, as if they must be resolved for next year, or say, 2018. My concern is not confi ned to the short term. And the younger members, who will be in practice at the Bar in 2030 or 2040 or some indeed in 2050 have a much longer stake in that future, and it is that future which must be paramount.
No one quite believes it when you say it, but it still remains true, that the Bar is a risky profession. Indeed at times it is cruel. I can look back at a number of careers that have faltered, sometimes because a talented practitioner has hit his or her optimum, and then for whatever reason failed to keep moving upwards; sometimes it is just ill-luck, sometimes a diminution in power, and sometimes youngsters come along who are better, and overtake. We spend much time talking about the risks at the outset, but you all know of those in practice 10 or 15 or even 20 years for whom the risks came home.
Not a trade union
But we are where we are now. Although how we arrived here is of historical interest only, the steps on the way are relevant to a different question. As each change occurred, how, if at all, did the Inns and the Bar respond, and change their ways of doing things? One undoubted change is in education and training. In his review, Sir Bill Jeffrey was firm in his admiration for this aspect of our work. If the Inns ever had a form of trade union function, it has gone. One typical consequence is that in the greatest crisis which faced the publicly funded criminal Bar, although the Inns made representations on the subject, the Inns were not perceived by the Bar to represent a significant element in the argument. This exemplifies how the relationship has changed. The future of the Inns is ineluctably linked to the future of the Bar, but it is now clear that the way in which the relationship between the two must work requires that the Bar should decide its future, and how it will be structured, and how it should adapt and change to ensure the survival of the profession, and that the function of the Inns is to support the Bar and its endeavours to secure its future.
It is for the Bar, not the Inns, to have the vision and the will to negotiate and achieve the implementation of that vision. We can though offer suggestions and advice. The Treasurers, Deputy Treasurers and Deputy Treasurers Elect of the four Inns should with the Under Treasurers meet from time to time for discussion with the Bar on strategic issues when asked. The Chairman of the Bar and his team would thus have direct access to the Inns in a formalised way rather than through an arrangement which largely depends on accidental blessings of friendship.
A smaller Bar
I have read the Jeffrey Report from cover to cover, and in detail. There is more than one strand to it. One strand speaks of, and I agree with him, the substantial national asset and the contribution to the national interest made by the Bar. I do not diminish the importance of that finding, but that surely is not the end of the story, but rather the beginning. If it were otherwise, if the Bar were not a national asset, it would be difficult to justify its separate existence as a profession. I have also detected that in some quarters this first Jeffrey finding is seen to represent the end of the story. If I may say so that is a narrow view. Surely it is only the beginning. Let us see what he also envisages. He foresees a smaller, more specialist criminal Bar. Well, being blunt, that means some will leave the profession.
Perhaps more significant for the future of this area of work, he suggests an expectation, to be developed over time, that most of those seeking to become barristers would begin their advocacy as solicitors, that is working in solicitors’ firms or the CPS, and then moving to the Bar. It is for the Bar to decide how the threat of backdoor fusion, assuming it is perceived to be a threat, should be addressed. Does the Bar go along with it? If so, nothing need be done. If not, it must take practical steps now, I mean now. And for the Inns, in the next decade, and perhaps longer, their main function would then be to offer sufficient support to the profession to ensure the survival of the Bar (whether publicly funded or not) as a truly independent profession, and to continue to attract bright intelligent men and women to commit themselves to working in publicly funded areas.
Alternative structures, alternative support
My urgent plea is that alternative business structures should not be dismissed out of hand. The choice is clear: unless there is to be a common system for entry into criminal advocacy, as reflected in Jeffrey, certainly so far as criminal work is concerned, the old fashioned chambers structures must be reconsidered. It should not be beyond the wit of the finest legal minds to create systems which satisfy the regulatory bodies and preserve the independent Bar, while increasing the level of communal interaction between members of chambers. How can the Inns offer support to the Bar? The Middle Temple spends a substantial proportion of its available income on scholarships. In any given year we have spent roughly £900,000 in supporting those who wish to come to the Bar. We are thus devoting huge sums huge sums of money, virtually our entire available income, to support those who have not yet been Called. Of every 2,000 men and women who join the Inns every year in order to be called, fewer than 400 will find a pupillage, let alone a tenancy, and of those 400 the available pupillages will rarely be in publicly funded sets. The end result is that a great deal of the Inn’s money is spent on helping young men and women to go on expensive courses which will be unproductive of entrance to an area of the Bar which affects the public interest, and the area of the Bar which most of the most able ones will already have decided is not the place for them to go anyway. My own belief is that we should acknowledge the new world, and return to the days when more funding was made available for those who had been Called, and in a tenancy, in order to support them. Because of our financial position, the only substantial source of such funds would have to be the awards we currently make before Call. This, I think, is the huge debate for the Inns.
One method of support may be to provide direct funding.
Another is to help increase the number of criminal pupillages by the Inns. A start has been made on this process. Surely some of our funding should now go to those who have succeeded in obtaining tenancies but for whom the struggle to make a living is marked.
The Inns themselves should work together. Each is proud of its library but in a digital age, four institutions, virtually within stone throwing distance of each other, are spending something around £4 million on library facilities for their members. Reconsideration by all the Inns together may be a way to release funds to assist those in practice. In addition, is it really necessary for each Inn to provide separate education facilities for those on circuit, and to do so when each circuit itself provides for continuing education?
If the function of the Inns is to support the Bar in the most practical and realistic way then, we, the Inns, may have to work together much more closely, not simply in a spirit of co-operation and mutual respect but as a body. Can each Inn provide the necessary support for the Bar while they operate as four separate independent Inns, or would that support be better provided at some future date by a form of reconstruction which would bring them much more closely together?
There are always prophets of doom. What I am sure is inevitable is that if nothing is done, or nothing very much is done by the Bar and Inns, the Jeffrey prophesy in relation to the criminal Bar will come to pass. The future of the Bar is in the hands of the Bar but as I said, if you want things to stay as they are, things must change.