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Judicial Independence: The judges as a separate branch of Government

Returning to the traditional ingredients of individual judicial independence, one can argue comfortably that English judges are impartial—at least vis-à-vis litigants. At the same time, we should remember that Winston Churchill, as a minister in a liberal government at the turn of the century, warned against allowing judges to decide cases where “different classes” were concerned,[26]while in the 1940s Aneurin Bevan refused to allow appeals to judges in National Health Service matters for fear of “judicial sabotage.”[27] Even that most conventional of commercial judges, Scrutton L.J., conceded in the 1930s that “it is very difficult sometimes to be sure that you have put yourself in a thoroughly impartial position between two disputants, one of our own class and one not of your class.”[28] Indeed, when one thinks of impartiality in a broader sense of values or prejudices other constraints are at work. English judges operate in a highly formalized system with a strong sense of law as a series of objective rules impartially enforced. Artificial as these claims may be, intellectually, judges are both pushed toward objectivity and kept up to the mark by the bar, which itself has a reputation for independence and impartiality. At least this is the official position, and it contains an important core of truth. The formality of English law, a relatively small bar, a divided profession, and the orality of English courtroom procedure all do work together to keep a judge’s prejudices and predispositions to a minimum.[29] Where the judge has discretion, however, whether it be over sentencing, the interpretation of statutes, or developments in the common law, the judges have more opportunity to allow their personal views full rein. As Lord Hailsham, a true Conservative Lord Chancellor, observed of the judges, “[u]nlike the keepers of the seraglio, they (the judges) do not have their political or social opinions carefully removed.”[30]

In recent years, there has been increasing skepticism about judicial impartiality: The bar is predominantly white, male, middle-aged, Oxbridge and public school educated; thus, how can they possibly be impartial? There is undoubtedly considerable confusion in the minds of judges, as well as the public and politicians, about what is meant by impartiality. The bulk of the public and politicians, however, are happy to accept the myth. It was clearly one of the reasons why judges have been so attractive as chairs of commissions or committees of inquiry and, more dubiously, commissions or committees to rethink some delicate political issue.[31] Such judicial work is frowned upon in the United States—the Warren Commission’s investigation into the assassination of President Kennedy being the exception and, in the view of most observers, no desirable precedent.

The English, however, have carried these judicial inquiries to remarkable lengths. In the fifties, sixties, and seventies not only were inquiries into accidents, areas of probable law reform, or criminal allegations of wrongdoing in public life subjected to some form of judicial investigation, but all manner of disputes, including union wage claims, disturbances in Northern Ireland, and colonial misadventures were treated in this manner. In this period, when there was a vast array of government commissions and committees, half of them were chaired by either judges or lawyers. The process was described by A.P. Herbert as “Government by Radcliffery,” named after the law lord who chaired so many of these inquiries. Yet, while the judges stumbled into these roles by chance, in the name of impartiality, they sometimes left with reputations sullied because their prejudices or political views were thought to be too clearly stated.