Specialisation in the legal profession has narrowed to the point where it is possible for a barrister to become a Queen’s Counsel without ever having cross-examined a witness, according to Mr Justice Rabinder Singh.
Delivering the Society of Legal Scholars’ centenary lecture, The unity of law – or the dangers of over-specialisation at the University of Birmingham, Singh J, a former academic and practitioner, warned of the dangers of over-specialisation among barristers and judges and suggested that each spend time in an unfamiliar environment in order to expand their knowledge.
Judges were able to sit in a range of cases beyond their areas of specialism because there were “certain skills which are transferable between the jurisdictions in which they sit”, including the finding of facts after hearing evidence, the giving of extemporaneous judgments and the understanding of case law. But “they can often be improved by sitting in different jurisdictions and seeing how things are done away from what may be one’s comfort zone”, he suggested.
By the same token, advocates specialising in both civil and criminal work could spend time in the others’ courtrooms – something that was not difficult in the Royal Courts of Justice, where administrative court cases were heard close to criminal appeal cases.
“I think that the civil practitioners might appreciate the importance of getting your points across succinctly, in a very limited amount of time. And criminal practitioners might see that points of law can arise in the criminal field on which light may be shed by civil law,” the judge said.
Singh J said that in his career so far he had been an academic, a practitioner, and now a judge, which had given him the perspective that “while specialisation in the law is valuable, it is also important to appreciate that we operate within one legal system”.
When at the Bar he had perceived that the profession was becoming specialised “to the point of perhaps becoming too narrow in some cases”. An example was that a barrister specialising in judicial review might be very good and attain silk without ever having cross-examined a witness.
In a rare case when cross-examination was necessary, that barrister’s chambers could ensure that its junior members had experience in more general work. He explained: “Some commercial chambers have formal arrangements with criminal sets so that their pupils or junior members can obtain some advocacy experience in the criminal courts.”
He drew on his own detailed knowledge of public law practice. Even within public law, in just a generation it had become divided into a number of distinct specialisms, such as immigration and planning law, as well as, for example, housing law, social services, and tax law, he observed.
It was possible for the law to develop within a specialist area without it being well known outside it. He gave the illustration of the development of the law of ‘legitimate expectation’ – giving rise to a substantive duty to act fairly – having moved faster in tax law cases than elsewhere in the law. But because it was only reported in specialist tax law reports, it had escaped wider attention.
It was important that certain generic skills were learned at university, such as an appreciation of the general principles of law, Singh J said. The academic study of law should focus on: knowing there is a problem and identifying the right questions to ask; knowing how to find the answer; having a grounding in legal reasoning, in particular the interpretation of legislation and the analysis of case law; and understanding the historical and social basis of law.