Following the High Court's Article 50 hearing there's been a lot of rubbish written recently about judicial impartiality. Judges are independent, goes the cry (you can tell that a lot of the writers, even the ones on the Left, would really like to carry on with a few choice extracts from Henry V).
But if you think about it for a moment, judicial independence is a myth.
It's true that, once they get into office, judges are free to apply the law as they see fit, always subject to the humiliation of being overturned on appeal. However there's the vexed question of how they get to be judges in the first place, and moreover what qualities they bring with them to the post.
In the old days becoming a judge was, like the process of becoming Queen's Counsel, a matter of a tap on the shoulder. Is old Scroggins a sound chap? Very much so. Not bad for a Wykehamist. Sign him up then, pronto. That all changed in the Blair years. Exhaustive application forms were to be filled in. Applicants were invited to state the steps they had taken to promote diversity (one QC applicant failed on this part of the test; surprising, since he was married to a black woman, a fact he didn't dare mention). Interview panels were set up. A small cottage industry (in which I once made a fleeting appearance) grew up to assist applicants, one which was so successful that some forms now require hopefuls to state whether they have used its services.
The effect of this process has been to accelerate what was in any event a tendency. The old Sir Bufton Tufton judges one still occasionally came across in my sojourn in the profession have been gradually replaced by the impeccably liberal types who toked on the occasional spliff at Oxford in the 60s or pogo'd to the Clash in the 70s. These men and women are in the 50s and 60s, and I know a good many of them. They are civilised, interesting, intelligent and, almost invariably, Left of centre and pro-EU.
In a way it's true that they are independent; but they are not independent of themselves. They come into judicial office as fully formed mature individuals, with views of the world and of British society they take with them into office. The only one I can think of who is not of the liberal Left claims to shoot rabbits through his bathroom window whilst at stool (notwithstanding the grotesqueries, this is a picture I would quite like to see).
And so do these people put their weltanschauung to one side whilst on the bench? They may honourably try. But, as I've written elsewhere, judges so often, consciously or otherwise, look for the meritorious party and then search for the legally defensible way of finding for them. They do not merely examine the law. Legal history is full of the antics of these judicial contortionists, and their hapless thrashing around has given rise to the old cliche, "hard cases make bad law".
The thorough trashing the High Court got for their handling of the Art 50 case (even from pro-Remain legal academics) suggests either that such motivations may have been at work or alternatively that the judges in the Miller case were simply way out of their depth.
Expect a more sophisticated version of the same in the Supreme Court. Judicial independence is a load of tosh.
