Independence of the Judiciary
however, is probably strengthened by the fact that, despite the recent reforms brought about by the Act, there are still members of the House of Commons and the House of Lords who are able to sit, and do sit, as part-time judges – appearing in Court and so performing their judicial function during the day and then attending Parliament. It is difficult to see how this can satisfy the ‘separation of powers’ doctrine since, regardless of the integrity of the individuals concerned, the appearance of a lack of independence is difficult to avoid. In conclusion, although in relation to the judiciary of England and Wales there is every reason to be satisfied that there exists the necessary independence to satisfy the needs of a free and democratic society and to that extent the requirement laid down by Montesquieu that ‘ the independence of the judiciary has to be real’ is probably met, what is less clear is whether there is the appearance of such independence. This remains something of a work in progress.
years and that its independence has become more obvious. There remains a lurking concern, however, that there is still a perception that the appearance of independence is not as clear as it should be. This perception may be unavoidable since the public is always likely to have something of a ‘them’ and ‘us’ type of thinking in relation to what are, in fact, different institutions. However, the position is not helped by features which persist notwithstanding the developments outlined above. These include the fact there continues to be a stereotype that all judges are white, middle or upper class men who are privately educated, 29 so creating the impression that there is no social divide between the judiciary, on the one hand, and the members of the executive and the legislature, on the other. This also gives the impression that, since judges are not representative of society in general, they are unable to act independently of the executive and the legislature because their inclination will always be to side with authority. Whether this is a fair impression is not the point; it is only the impression which matters, not its fairness. It is an impression which,
29 www.guardian.co.uk/news/datablog/2012/mar/28/ judges-ethnic-sex-diversity-judiciary (‘White and male: diversity and the judiciary’).
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