Zachary Tyree, Esquire

2022 Temple Bar Scholar Report

“For everything there is a season, and a time for every matter under heaven.” So began the Old Testament reading at this year’s Opening of the Legal Year Service at Westminster Abbey. Dating back in some form to the Middle Ages, the modern service is held each year, as its name suggests, to mark the beginning of the legal year. And it is something to behold: judges decked out in their ceremonial wigs and elegant robes; lawyers in their morning-dress best; the organ’s beautiful music filling the centuries-old church. The gathering has an ancient and important purpose: to set apart the judges for the important work they undertake and to seek God’s wisdom in that work.

While much more could be said about the service’s venerable roots and modern meaning, the central focus of Ecclesiastes 3:1—time—serves as a helpful prism through which to reflect upon not just that service but the Temple Bar Scholarship as whole. In my view, that reflection reveals an ongoing interaction between the past and the present, a desire to preserve institutions and practices of old while evolving to address modern challenges and account for new views.

Perhaps nothing presents this past-meets-present phenomenon quite like the British monarchy. I arrived in the United Kingdom at an historic time. Her Majesty Queen Elizabeth II had died just two days earlier. A deep sense of grief and sadness pervaded the country and its people. Many reflected on the late Queen’s long life of service and the connection she provided to bygone generations. Flowers and cards lined streets and filled parks. Much happened and much changed, in the world and in the United Kingdom, during her 70-year reign. Her death set in motion a long series of events. The Accession Council, on which many senior judges in the United Kingdom sit, met to proclaim Charles III as the new King as my plane was landing. “God Save the King” was said and sung for the first time since 1952. The most senior barristers—lawyers who appear in court—immediately became King’s Counsel (KC) rather than Queen’s Counsel (QC). That last change swiftly appeared on email signatures but only with great difficulty did lawyers and judges begin to update their vernacular. And yet, much stayed the same.  Indeed, the premise of the monarchy is that it never dies. Time and the monarchy, then, have a fascinating relationship—a balancing act between preserving the past, existing in the present, and looking to the future.

Several notable features of our introduction to legal London also show this interplay between the past and the present. We spent part of the first week of our program touring the four Inns of Court for England and Wales. In order to qualify as a barrister and be called to the bar, which gives an attorney the right to appear in court, a person must join one of the four Inns. The Inns date back to the 13th or 14th century, when lawyers began to congregate in that particular area in the City of London when they came to town for court or business. (The Inns are so called because people actually did stay there.) The Temple Church, a famous round church around which two of the Inns are situated, was originally used by the Knights Templar as a meeting place in the Middle Ages. Another of the Inns is, this year, celebrating 600 years of continuous record keeping. Prominently displayed in each of the Inns are land grants from the Crown dating back centuries, explaining why the Inns still own large swaths of prime real estate in the city. The Inns’ history, then, is rich.  But their location and influence give them important responsibilities today. They fulfill those duties largely through educational offerings and civic endeavors. The Inns work together with governing bodies to help educate aspiring barristers by providing training courses that offer doctrinal and practical instruction and to help newly-qualified barristers find coveted, scarce job placements. We learned about the difficulties that the Inns have faced in the 21st century, given technological advances, globalization, and COVID. They continue to explore new and better ways to diversify the legal profession, including by offering training to younger students and providing scholarships to promising lawyers with less means. These old institutions, then, serve a vital function today.

The distinction between barristers and solicitors provides another picture of the intersection of the past and the present. Unlike in the United States, after studying law in the UK, a student must decide whether to become a barrister or a solicitor. This dichotomy dates back centuries. Generally, barristers to argue a case in court, while solicitors work with clients to develop cases. Historically, barristers were the only lawyers with rights of audience, meaning only they could appear in court. And barristers were not permitted to talk to clients. Instead, solicitors would meet with clients to discuss a legal matter and then instruct a barrister on the case to seek the barrister’s view of the legal issues presented or to ask the barrister to bring the case to court. Barristers have historically been self-employed, though they pool together resources for office space and administrative staff in what are called chambers. Solicitors, on the other hand, have often been employed in firms, more like lawyers in the United States. While many UK lawyers still consider the distinction fundamental and defining, it has begun to break down. Barristers are now permitted in many instances to work directly with clients, without a middle-man solicitor. And the concept of employed barristers, those working for a salary at a firm, has begun to gain traction. Further, solicitors may now attain rights of audience to appear in court. And increasingly, those who want to qualify ultimately as barristers will train first as solicitors because competition to secure a barrister training position, known as a pupilage, is so stiff. It seems unlikely that the UK system will ever scrap this long-standing divide, but I imagine that it will continue to evolve more as litigation becomes more global and lawyers strive to meet the ever-changing needs of clients.

The history and workings of the Supreme Court of the United Kingdom, where we spent the final week of the program, also display this interaction. You might have thought that the Supreme Court of the United States would have been modeled on the United Kingdom’s top court. In fact, the reverse is true. By British standards, the UK Supreme Court is a very new institution. It did not exist until 2009. That year, it replaced the Appellate Committee of the House of Lords as the highest court in the United Kingdom. It was thought that the legislative and judicial functions should be more clearly separated in order to avoid the appearance of bias and to promote the public’s understanding of the independence of the Law Lords from the Government and the non-judicial members of the House of Lords. In reality, the shift was less than seismic. The Law Lords basically walked across the street to a different building and carried on with their work. For example, by tradition, barristers and judges in many courts wear wigs and robes. But because the Lords on the Appellate Committee never did, the justices on the UK Supreme Court do not. And because the Appellate Committee did not sit on an elevated dais, the UK Supreme Court is designed such that the judges sit on the same level as the lawyers and the public, unlike the other courts in the UK. The UK Supreme Court also brought along with it the jurisdiction that the Law Lords had exercised. Again, based on long historical precedent, there are three separate legal systems in the UK. England and Wales have one system, but Scotland and Northern Ireland each have their own distinct systems. The UK Supreme Court, however, acts as the final court for all three—the entire United Kingdom (except for an historical exception for criminal cases from Scotland, over which Scottish courts have the final say). Another relic from the Law Lord days (and the British Empire) is that the UK Supreme Court wears a second hat: It sits as the Privy Council, in which capacity it serves as the highest court of the countries for which the monarch remains the head of state. The Court is a fascinating place, crafted of late to carry on an age-old role.

As a final example, even the kind of law that applies in British disputes reflects an interplay between history and modernity. The English common law has worldwide acclaim. And British lawyers and judges pride themselves on that system and the principles and values that underlie it.  The UK famously has no written constitution. But the common law serves to preserve and respect individual rights. Thus, even when the UK joined the European Convention on Human Rights in the 1950s—a sign of the growing trend in written constitutions and bills of rights—the UK itself adopted no implementing legislation to incorporate those rights domestically because lawmakers thought that the common law already provided commensurate protections.  While the UK has by no means thrown over the common-law system, eventually it did adopt local legislation to incorporate the ECHR into UK law, in part because the ECHR had been interpreted by the European Court of Human Rights to protect rights not understood to be safeguarded by the common law. That statutory incorporation has led to an interesting dual-track system. UK courts still have the final say on UK law, which remains centered on the common law even though some statutory rights now exist, while the European court has the final say on the ECHR. A UK citizen could therefore have rights under international law that do not exist under domestic law. We saw a case during our week at the Court presenting a question along these lines, related to investigatory obligations stemming from an IRA bombing in Northern Ireland in the 1980s.

Much more could be said on this front, but you get the idea. In the end: Things change; things stay the same. That reflects a balance, perhaps a tension, inside many—or dare I say all—of us. On the one hand, we are creatures of habit who find comfort in what we know.  On the other, we occasionally long for a change of pace or the latest and greatest. As David Gibson put it in his recent book Living Life Backward: “We long for change in a world of repetition, and we dream of how to interrupt it. We long for lives of permanence in a world of constant change, and we strive to achieve it.” Or, as the writer of Ecclesiastes says, even while noting that there is a season for everything: “That which is, already has been; that which is to be, already has been.”