“Historic strongholds” and law librarians

On the simple point of nomenclature, Eastham was of course largely right. If one just looks down the list of delegates at any recent BIALL conference, the job title ‘librarian’ is indeed now attached to very much the minority, and that minority as likely as not will be from institutions such as the Inns of Court. And indeed I see no change there in the foreseeable future. That it is the case that the Inn libraries will continue to have significant quantities of books in printed form will be discussed in due course. So long as they do and are called ‘libraries’, it will not be inaccurate to call their staff ‘librarians’. (In fact at Middle Temple the chief librarian is not even called the Librarian, but has recently been designated the Keeper, a title not used at Lincoln's Inn since the 17th century, when incidentally the post was held by the second butler.)

Institutional underpinning of the legal profession

In looking to the future, rather more significant than the question of job titles and the physical media that they happen to reflect is the institutional underpinning of the Inns and the Bar generally, and whether that underpinning remains structurally sound. Both the creation and the disappearance of law libraries for the legal profession have always been intimately connected with the organisation of the profession itself.

Libraries for solicitors

Taking first the solicitors' branch of the profession, this point is clearly illustrated by contrasting the position in Scotland with that in England. Whereas there was no general law library for the use of solicitors in London until 1831, in Edinburgh there had been one in the form of the Signet Library since 1722 (Ballantyne, Reference Ballantyne1979). This was simply because the Law Society itself had only been initially formed in 1827, whereas the Society of Writers to His Majesty's Signet had a history stretching long further back. The connection between libraries and professional organisation is likewise demonstrated by the fact that in England the earliest law libraries for solicitors were in the provinces rather in London, because the provisional solicitors were in advance of their metropolitan colleagues in forming law societies, starting with Bristol in 1770, there were already eleven local societies, many expressly founded to provide libraries, before the Law Society came into existence (Robson, Reference Robson1959).

Staying with solicitors, another striking feature in the development of the law librarian profession – the fact that the majority of the BIALL membership now works for law firms - can also be explained by underlying organisational factors. In the last edition of the BIALL Directory of Law Libraries (BIALL, 2006), there are over 170 law firms libraries listed, whereas in 1976 the first edition of BIALL's early flagship publication, the Manual of Law Librarianship (Moys, Reference Moys1976), had just a single paragraph on law firm libraries in the introductory survey of the different types of law library of 27 pages. The reason can be traced directly to the enactment of s.120 of the Companies Act 1967. This removed the previous restriction that solicitors' firms could have no more than 20 partners, and thus opened the way to the creation of the city law firms of the size that we know today, with their concomitant information needs and the resources to meet them.

Inns of Court

Thus to explain the longevity of the Inns of Court libraries, which can be traced back to the early 16th century, one must look at the reasons for the longevity of the Inns themselves. And to assess the future of the Inn libraries, one must likewise assess what the life expectancy of the Inns might be. Unfortunately history offers three concrete examples of institutions closely allied to the Inns of Court, where longevity did not end up equating with immortality. The first is the Inns of Chancery. Their names, for example Staple Inn, Barnard's Inn, Clement's Inn – there were nine originally – are now merely associated with geographical places in the legal quarter of London near the Inns of Court. But as societies of lawyers, at first as preparatory schools for the Inns of Court and latterly as the professional homes of attorneys and solicitors, they all slowly vanished, the last, Clifford's Inn, being dissolved in 1903. This was despite a history stretching back to the fourteenth century, when the Inns of Court also emerged. The second example is the Serjeants at Law and their home, Serjeants' Inn. The elite pleaders in the Court of Common Pleas, from whose ranks all the common law judges were always appointed, the Order and the Inn was eventually wound up 1877, notwithstanding a history traceable to at least the early 13th Century (Megarry, Reference Megarry1972).

Vanished law libraries

Neither the Inns of Chancery nor Serjeant's Inn appear to have had significant libraries, but the third example, Doctors' Commons, had a very splendid one. Doctors' Commons, or the College of Advocates, was a near-equivalent of an Inn of Court for the advocates who practised in the ecclesiastical and admiralty courts, which followed Roman-based civil law rather than English common law, and who had received their primary legal training at Oxford or Cambridge, attaining the degree of Doctor of Civil Law, rather than at the Inns. The extant records of Doctors' Commons begin in 1511, and its last formal meeting was in 1865, by which time its library, which dated from 1685, had already been sold. The membership had never been numerically large, and at the end it stood at 26, so not perhaps a passing with a huge impact. On the other hand, the sale of its library in 1861 at Hodgson's auction rooms occupied eight days – an indication of its significant size, though a sadly swift end to a collection that had taken nearly two hundred years to build, and so perhaps the most salutary precedent of the three examples (Squibb, Reference Squibb1977).

Professional monopolies

The reason underlying the demise of all three sets of institutions was fundamentally the same, namely professional monopoly: in the case of the Inns of Chancery a lack of one, and in the cases of the Serjeants and the Doctors of Law the loss of one. In contrast to the Inns of Court which conferred the degree of barrister, which ultimately came to carry exclusive rights of audience in court, the Inns of Chancery offered no formal qualification, and with the loss of any educational function once the students destined for the Inns of Court had gone, they were bereft of any significant institutional foundations. At the time of the foundation of the Order of the Serjeants at Law, there was only one principal forum for civil litigation: the Court of Common Pleas. The evolution of the rival jurisdictions in the form of the other superior courts, the King's Bench in particular, brought about the rise of the barristers, leaving the Serjeants with exclusive rights of audience in but one of four courts. The eventual abolition of even that monopoly in 1846 rapidly precipitated their final end, which was capped with the removal of the qualification as a pre-requisite for appointment as a judge by the Judicature Act 1875. Likewise for the Doctors of Law: there was first the significant loss of business when probate and divorce were removed from the ecclesiastical courts to the ordinary courts in 1857, rapidly followed with the loss of their monopoly in the Court of Admiralty, which was opened to barristers in 1859.

Survival of Inns of Court into 21^st Century

Although there are certainly other contributing factors, the survival of the Inns of Court into the 21^st Century has to be attributed to the same type of cause – the retention of the monopoly of call to the Bar. Although the position looks for the time being reasonably secure, there have been occasions in the only recent past, and indeed the very recent past, when the position appeared a good deal more fragile. The two main causes of anxiety have been firstly the reforms of rights of audience in the 1990s – the decade of the so-called ‘Bar Wars’, starting with Lord Mackay's green papers and the resulting Courts and Legal Services Act 1990 through to the Access to Justice Act 1999 – and secondly the Clementi report (Clementi, Reference Clementi2004) and the Legal Services Act 2007.

Fusion of the legal profession

The question whether the two branches of the profession should be fused may be something of an old chestnut. Proposals to do so have appeared at least since the 19^th Century. In particular, the creation of modern County Courts in 1846 gave an impetus to such calls, since the solicitors were given rights of audience in the new courts, appearing alongside barristers, and so highlighting the anomaly, in some eyes, of having a divided profession (Birks, Reference Birks1960 at 243). Fusion in a more modern context was looked at again in some depth by the Benson Commission on Legal Services in 1979, but firmly rejected (Royal Commission, 1979). But it did not seem a notion that might be so readily dismissed during the extended furore that occupied the profession during the 1990s. That has been exhaustively documented by Richard Abel (Abel, Reference Abel2003). He provides quotation after quotation from opponents to the proposals – proposals which had come in succession from both Conservative and Labour governments – all predicting the direst consequences. Yet, well into the following decade, the Bar continues to expand and the Inns have not become annexes of the Law Society.

A re-run of some of those arguments was in danger of following from the Clementi report. Clementi in his report barely mentioned the Inns at all, in itself of some concern – to be considered an irrelevancy was hardly better than being perceived as an obstacle. Even if the proposed availability of new business structures for legal practice did not directly threaten the prospect of fusion, and the continued separation of the Bar Council and the Law Society as front-line regulators was re-assuring, there remained the prospect of call to the Bar becoming the prerogative of the Bar Council rather than of the Inns. During the passage of the Bill that became the Legal Services Act 2007, a particularly important concession by the government was the insertion of a definition of a ‘barrister’, which surprisingly had been wholly absent in the original version of the Bill. Furthermore, that definition, which is to be found in s. 207, is expressly in terms of having been called to the Bar by an Inn of Court. We may well see novel forms of barristers' chambers, if imaginative use is made of the Act. For example, one senior clerk has commented, ‘Under Clementi I could open “Barristers R Us”, employ them, give them 28 days’ holiday and BUPA, and pay them 40k a year.' (quoted in Flood, Reference Flood2007 at 16). But the position of the Inns would not be fundamentally different.

How changes at the Bar affect Inn libraries

Nonetheless, changes at the Bar will affect the Inn libraries. Just as the growth in the size of solicitors' firms led to the creation of proper libraries for them, so the growth in the size of barristers' chambers, has led to the creation of chambers libraries, run by qualified librarians. There is even now a Bar Librarians Group, with 20 members from chambers libraries. Unlike with solicitors' firms, the growth in the size of chambers is not directly attributable to a single factor. But mergers, together with branding and an increasingly corporate ethos, have proved necessary to succeed competitively. The fact that hitherto all barristers have had to be technically self-employed has probably been the only obstacle to even further growth, and to the creation of ‘barristers firms’. Post-Clementi, that may well change. There is clearly a danger from the point of view of the Inns' libraries in chambers becoming self-sufficient in their library and information needs. And the fact there is even the possibility of self-sufficiency is of course largely due to the availability of online resources.

That trend certainly points to the Inn libraries having to capitalise on their strengths, which is the depth of their holdings of traditional printed material, which chambers libraries cannot begin to replicate. It might be said that that too will become an irrelevancy - it is now far from fanciful, thanks to the Microsoft, Google and other mass-digitisation projects, to envisage the entire corpus of the world's historic printed output being available online. Ben Macintyre commented on this recently in The Times (Macintyre, Reference Macintyre2007). He made the point, which has long been well known to librarians, that the availability of surrogates, whether online or more traditionally in microform, far from eliminating the need for the printed materials only increases demand for the originals. And that in turn reinforces the need for the expertise of librarians in organising and understanding the material.

However, even if one trend at the Bar is for ever larger mega-chambers, that is not the whole picture. The Bar has never been homogeneous. Those doing publicly-funded criminal and family work, for instance, are far from fat cats and the cost of online services is beyond the means of many - certainly the full range of services needed for any form of in-depth legal research. Since the Inn libraries provide all the major online services, but for licensing reasons only within the libraries, not remotely, there will continue to be significant numbers of barristers coming into the libraries for this reason alone. The other development that may have an interesting impact on the Inn libraries is the emergence of virtual chambers (see, for example, Venables, 2006). This makes it far easier for barristers to work in effect as sole practitioners, if they choose. One implication is that this form of practice will tend to carry continued reliance on the Inn libraries for its legal information needs. But another observation is that while some may simply work from home, others are choosing to use the Inn libraries as in effect their office. Lincoln's Inn Library has had wi-fi access for readers' own laptops for some time, and the other Inns are likely to follow suit. Photocopiers, printers and other amenities are on hand; and of course there is zero distance to walk if you actually need a library. So perhaps we will see the re-invention, at any rate for those who are London-based, of the ‘library system’ of practice that was originally the model for the Irish and Scottish Bars.