The master of the rolls has urged judges to use caution in speaking about public matters, warning they risk undermining the independence of the judiciary.
Lord Neuberger said judges should be free to comment extra-judicially on a wide range of issues, but that they should be cautious about publicly discussing controversies as it could call into question judicial independence.
He said that in 1955, the lord chancellor Lord Kilmuir said judges should be ‘insulated from the controversies of the day’ and keep silent to ensure their ‘reputation for wisdom and impartiality remains unassailable’. That guidance was set aside by Lord Mackay, who said judges should decide for themselves when it was appropriate for them to take part in public discussions.
Neuberger suggested that, recently, some judges had gone too far in their extra-judicial activities. He said: ‘I can only imagine the horror with which Lord Kilmuir... would have viewed several members of the Supreme Court discussing their role, approach to work, home life and recreations on television.
‘As for their reaction to my colleague, Lord Justice Stanley Burnton, appearing as an amateur food critic on last week’s episode of Masterchef, the mind boggles,’ he said.
Neuberger added: ‘It does not bear thinking about what Lord Kilmuir would have regarded the most senior judges discussing who peels the potatoes at home, how they shop at Tesco, whether they cycle to work, or how they write their judgments, let alone senior judges giving their views on mango and passion fruit crème brulee.’
He said judges must be careful about making ‘brave out-of-court pronouncements’ on issues which he may later be called on to decide judicially.
Neuberger criticised Lord Sumption for reported comments made in a lecture earlier this year, in which he questioned the extent to which the judiciary has interfered with the decisions of the executive.
He also said that it had been ‘inappropriate’ for Lady Hale, in a speech in November to have described aspects of the government’s legal aid reforms as ‘fundamentally misconceived’, and a ‘false economy’.
However it is also inappropriate for politicians publicly to criticise decisions of judges, he said. ‘A judge can scarcely complain about ministers criticising him for the way he is doing his job if he criticises ministers for the way they are doing their jobs.
‘And if they slag each other off in public, members of the judiciary and members of the other two branches of government will undermine each other, and, inevitably, the constitution of which they are all a fundamental part, and on which democracy, the rule of law, and our whole society rests,’ he added.