The Inns of Court are steeped in tradition. But as they iron out their regulatory function with the bar council, do they have a future in the post-Clementi era? Jon Robins finds out

In the popular imagination, the Inns of Court are portrayed as a kind of heritage theme park to keep American tourists amused on their trips of ‘legal London’, or as stuffy gentlemen’s clubs for senior members of the bar to knock back cheap port in the enforced company of younger members of the profession working their way through their obligatory ‘dinners’.


But what do the inns actually do? Sir David Clementi, in his review of the regulation of the legal profession, shone a light on the rather opaque but crucial role that the inns play and asked where true power lies in the barristers’ profession. ‘As things stand, it would be hard for any reviewer to conclude that it is clear where regulatory authority and hence responsibility lies as between the Bar Council and the inns,’ he concluded in his report last December.


The inns, as well as being landlords to many barristers, hold several key roles – they have responsibilities for training students, for granting scholarships, for admission (barristers must be called to the bar by one of the inns), and they play a part in the disciplinary process.


Just where the former deputy governor of the Bank of England’s review will leave the four London inns – Lincoln’s Inn, Inner Temple, Middle Temple and Gray’s Inn – remains to be seen. Simon Thorley QC, a bencher at Inner Temple who sits on a joint working party with the Bar Council looking at the Clementi review, thinks change is inevitable.


The inns and the council are currently working on a ‘transparent division of functions’ whereby a newly constituted body, the bar standards board, would have ultimate responsibility for defining professional rules. ‘What will change is that there will be this ring-fenced regulatory body which will take over and carry out a number of functions that the Bar Council and the inns used to carry out,’ Mr Thorley explains.


The Bar Council is ‘sensitive to the need to clarify [its] own regulatory arrangements’, comments spokesman Jon McLeod. ‘It acknowledges the scope for some form of rationalisation and a more streamlined approach,’ he continues. ‘That could mean a different role for the inns going forward, a role that retains their core responsibilities for the provision of education, accommodation and advocacy training as well as their role as the collegiate glue of the profession.’


But just where does Sir David’s apparent confusion lie? It dates back to a 1987 agreement struck between the Bar Council and inns after the dramatic reforms of the council by ‘the Slate’, the radical barristers’ group that fought stagnation at the bar in the mid-1980s. The group included Anthony Scrivener QC and the late Lord Williams of Mostyn, the former leader of the House of Lords, who both went on to become Bar Council chairmen. They began a process of reform which included limiting the governing role of the Inns of Court by separating it from the Bar Council.


Under the 1987 agreement, the inns ‘agreed to accept and to implement the general policies laid down from time to time by the Bar Council’, subject to certain conditions. According to the Clementi report, that deal has no force in law and may be cancelled by an inn on 12 months’ notice.


Sir David said: ‘The agreement… has allowed some to argue that the inns have real power underlined by the fact that at the head of each inn is often a senior judge with precedence over the barristers who run the Bar Council and this position is further underlined by the fact that through their property interests the inns have wealth and contribute significantly to the Bar Council’s finances.’


He also acknowledged a counter view that the power has ‘irreversibly transferred’ to the Bar Council. ‘The truth rests somewhere in between,’ he concluded. There is a complex formula for dealing with deadlock between parties and a body known as the Council of the Inns of Court presides over disputes. ‘A number of people at the bar and almost everybody outside the bar seem to be unaware of the existence of this important body,’ Sir David observed.


Mr McLeod does not accept the notion that the inns, with all their financial clout, hold greater sway in the relationship. ‘The truth of the matter is that they are economic agents within the profession, but you have to look at the way they use the fruits of that economic base and overwhelmingly they provide it in the interests of education, training and the development of the profession,’ he says.


Some 30 years ago, Martin Bowley QC, a former Bar Council treasurer and leading light in the Slate, memorably damned the inns as ‘self-perpetuating, geriatric oligarchies’. Today, he says: ‘I see no reason to change my mind now.’


While Mr Bowley is a long-time critic of the inns, the silk is also a bencher of the Inner Temple. He subscribes to President Lyndon Johnson’s famous principle that it is best to have your opponents ‘on the inside of the tent, pissing out, than on the outside, pissing in’.


The barrister applauds the educational initiatives of the inns and the ‘good-value and heavily subsidised courses’ they offer. In fact, he was going to a talk by Lord Robert Winston, the fertility expert, hosted by one of the inns on the day he spoke to the Gazette.


But Mr Bowley also reckons that there is ‘an alienated majority’ for whom the inns have no relevance. Only 40% of the bar are tenants of the inns and more than one-fifth (22%) practice in London but outside the inns.


‘There is also a failure to understand that the male, white Anglo-Saxon Protestant public school Oxbridge ethos of the inns makes them singularly unattractive to the 30% of the bar who are women and the 10% who are from ethnic minorities,’ he adds. Mr Bowley argues that any regulatory restructuring that comes as a result of Clementi should have been implemented years ago. ‘For far too long they have been reactive rather than proactive,’ he says. ‘Why hadn’t the bar prepared itself for Clementi long before the review was even set up?’


Peter Herbert QC, chairman of the Society of Black Lawyers, readily admits that he has no clear idea about the regulatory demarcation line between Bar Council and inns, and which takes the lead. ‘But constitutionally there have to be clear lines,’ he says. Otherwise the silk suggests that uncertainty can lead to, for example, the ‘monumental confusion’ over complaints procedure.


Last month, the Visitors to the Inns of Court – an appeal body for barristers’ disciplinary proceedings – ruled that the current disciplinary practice did not provide an impartial tribunal as required by the Human Rights Act 1998. Under the rules, decisions on whether to prosecute a barrister are made by a professional conduct and complaints committee (PCCC) that includes members who also sit on the disciplinary tribunal that adjudicates over the charges. This could lead to a perception that adjudicators could be ‘judges in their own cause’, although individuals would not sit on a disciplinary panel in a case on which he had attended a PCCC meeting (see [2005] Gazette, 1 April, 3).

More generally, Mr Herbert is no fan of the inns system. ‘It’s anachronistic in this day and age, because it was designed for a time where the bar was so small that it was more or less a members’ club.’


The inns have ditched the old dining requirements where barristers were not allowed to practise until they consumed 24 dinners over a period of at least two years. Now younger members of the profession have to submit themselves to 12 ‘qualifying units’, which come in a variety of forms, including away weekends and educational dinners with lectures.


Rituals have included students having to make impromptu speeches if they commit faux pas such as failing to toast their colleagues in the right order, or not being allowed to go to the toilet until barristers on the high table have left.


It will come to as a relief to many that it is now possible to become a barrister without increasing your waistline. Mr Bowley offers a bottle of champagne to the first member of his set to qualify without eating one meal. Mr Herbert describes his own dining experiences as ‘instantly forgettable. A large number of people just went out to drink as much cheap port as they could and listened to bad jokes. There were odd occasions where you were made to feel as a member of an ethnic minority distinctly uncomfortable, such as toasts to the Queen and Empire. I just thought: “Why am I here?”’


Justin Kitson, chairman of the young bar committee and a barrister at Selborne Chambers in London, dismisses the caricature of the inns as an anachronistic social club as ‘absolute rubbish’. He says: ‘I don’t subscribe to the idea that they are antiquated. What they are trying to do is perform a function by harbouring a sense of an advocate community and through that they are able to provide professional development.’


As far as the ongoing review of regulation is concerned, the barrister recognises ‘a blurring between the regulatory roles’ of the Bar Council and the inns. ‘There will have to be clear demarcation about who is the regulator in a post-Clementi world,’ Mr Kitson adds. He hopes this will mean that the inns can concentrate on scholarships and training. He recently went on a weekend advocacy course in Northamptonshire for 30 barristers led by ten expert trainers, including one Lord Justice of the Appeal, costing in the region of £100.


Ken Aylett, a barrister at 15 New Bridge Street chambers in London and a bencher at Inner Temple, maintains that the inns structure reinforces the identity of the profession and allows junior members of the bar to access its most experienced practitioners. ‘The inns can call upon their own members if they have a social conscience to provide free training for juniors, and they do that in a massive way,’ he says.


His own chambers (formerly Hardwicke Crime) became one of a growing number of sets to leave the rarified ambience of the inns when it quit Lincoln’s Inn to become 15 New Bridge Street chambers last year.


Around 50 chambers have quit the inns since the Bar Council dropped restrictions on practising outside the inns in late 1989. That may not be a flood, but it is a fairly substantial trickle as demand for space outstrips supply in the legal Square Mile, and commercial landlords strike better deals.


As Mr Aylett points out, the inns used to be benevolent landlords, with cheap rents and short notice periods that were ideal for the self-employed bar. However, they are now falling into line with City property arrangements.


The barristers at 15 New Bridge Street have effectively clubbed together to become their own landlord and bought 7,500 square feet, split over six floors, in their grade II listed building by Blackfriars tube station and close to the Old Bailey. It cost £3 million and is a far cry from the cramped Dickensian surrounds of their old home in Lincoln’s Inn where English Heritage restrictions meant they could not disturb the parquet flooring to install cable trunking for IT.


But does he miss the inns? ‘There is a sense of history and belonging in the inns,’ he says. ‘But those personal feelings probably have no commercial benefits and it is fair to say that the emotional connection is illusory as to its benefits as well,’ he adds.


Nonetheless, Mr Aylett also attests to what Mr McLeod calls the ‘collegiate glue’ of the inns. Why do barristers have such an allegiance to the inns? He says: ‘There is an emotional attachment to the independence of the bar – and that is why Clementi is such a danger, because the government is nationalising the bar.’


He predicts that the Clementi review and the prospect of so-called Tesco Law could be ‘an absolute disaster’ for the bar. ‘It is an attack on the independence of a profession and the independence of thought,’ he says. He identifies the inns as ‘a repository of that independence’.


Liam Walker, also at 15 New Bridge Street, who was called to the bar in 2001, does not regard himself as being of traditional barrister material – for a start, he went to a state school and did not go to Oxford or Cambridge. He did not relish the prospect of dining at the inns which, he recalls ‘wasn’t exactly daunting but seemed very cloak and dagger’.


He was pleasantly surprised by the experience and says the inns perform a valuable role. ‘When I did my dinners it made me feel included in the inn and the workings of the inn, and it gave me a sense of professional history,’ he says.


The barrister plays an active role in Gray’s Inn and, for example, is taking part in a mock interview for a junior member who is having problems finding pupillage. This is what the inns are all about, he explains: ‘We aren’t just building a profession; we are building a community.’


Jon Robins is a freelance journalist