If you were given the chance to start a new set of chambers with a free hand, what would it be like? I asked myself that last year, and these were my answers.
First of all, we should be inside one of the Inns. We need these ivory towers to remind us who we are and, at the same time, to protect our independence from one another.
The first part of that is obvious. The separate role of the bar, the genuinely collegiate nature of the profession and the organic interdependence between the bar and the judiciary are all manifested and preserved by the Inns and would not survive without them.
The other part is less obvious. Our individual and personal independence, which is the most important element of our function within the legal system, depends on keeping to a minimum our financial ties with other members of the bar. Chambers outside the Inns may represent a good investment and may seem to offer better facilities at lower rents, but they are bound to involve a joint financial commitment that is likely to grow and engender a corporate attitude. Chambers inside the Inns provide complete security whatever the terms of your tenancy. The Inns are never going to turn out chambers who pay their rent and behave themselves, and yet they ask for minimal commitment as there is always a break clause.
Second, we should allow ourselves to be defined by the geography of the place. Sets of chambers began as convenient sharing arrangements, defined by a group of rooms or a staircase which formed a natural community. That has turned out to be an important factor in preserving our individual independence because it produces a form of association that can, and should, provide support and security for members – particularly beginners – without contractual or other formal ties.
But there is no point in being bigger than a staircase, or perhaps two adjacent staircases. When chambers get too big for all the members to know one another they lose their point. The opportunities for economies of scale are limited and the idea that chambers can offer the services of ‘teams’ or ‘departments’ is either illusory or unprofessional. We can operate very effectively in ad hoc teams for particular cases, but anything more is the first step towards partnership and that would be the end of the bar as a separate profession.
Third, today’s chambers must have state-of-the-art IT. CDs, online publications and databases and receiving instructions and transmitting our work by email have transformed the way we work and will go on doing so in ways we cannot fully predict. They have increased our independence and mobility because we are less dependent on the library and the chambers’ copying and fax facilities – the chambers typist is an extinct species. We have to go with that and it suits us. The court will be paperless before we are much older.
But contrary to our expectations a few years ago, state-of-the-art technology is not prohibitively expensive. High-speed cabling and switching, fast and sophisticated document-handling and SDSL – so that you are transmitting your data as fast as you are receiving it – are essential. But if chambers are too big, the hardware has to be duplicated and extending your network beyond a single staircase may be difficult or impossible.
Finally, the most important requirement, apart from, of course, high-calibre members, is high-calibre traditional clerks. Again, this is vital for our independence. A chambers should be managed by its senior clerk and a team chosen by them and loyal to chambers through them. The head of chambers should not have time to manage chambers and a committee of busybodies who do have time is a recipe for disaster. The clerk should be regarded as responsible equally and independently to each member and not as employed collectively – two chancery judges have described the position of senior clerk as “an office”. That is the correct legal analysis of the position and an artificial contract should not be superimposed. In my view, these contracts are generally either shams or liable to be set aside for undue influence, but that topic requires an article to itself.
The fraternity of traditional barristers’ clerks – including those who have followed governors when they took their seats on the bench – provide an invisible but indispensable network that smooths and lubricates the court process. Chambers which are not managed by such a clerk are severely hampered in serving their clients.
John McDonnell QC is head of chambers at Thirteen Old Square