Does our government believe in the rule of law?

It's ministers v judges

Ministers of the Crown are increasingly attacking rulings made by judges, and sentences handed down, apparently following a right-wing tabloid agenda that threatens the rule of law. And judges are increasingly hitting back, partly in self defence and partly in defence of ancient liberties they see as under threat.

The latest row concerns the terror legislation, which a High Court Judge has declared incompatible with the Human Rights Act. Once upon a time the response would have been along the lines of "Oh, well in that case we'll have to think of something else", but now John Reid has started to talk of a "constitutional crisis". I think he's right - there is a constitutional crisis, but it stems not from the judges but from the government's belief that it can do precisely what it likes because it has been elected.

Democratic legitimacy counts for much, but it does not override other elements of our unwritten but well-understood constitution. The separation of the legislature from the judiciary is one of the cornerstones of that constitution, as it must be in any free society. New Labour do not seem to want a free society, they want a society that does what it's told and knows what's good for it. Their motives are probably not base, but the destruction of all of the safeguards built into the British way of doing things will make it very easy for anyone else who comes after to set up a dictatorship, and I am less sure anyway that New Labour's motives will continue to be pure. Authoritarianism thrives on success. Once the judges have been brought to heel, and the police have all those new powers they have to have to deal with 'terrorists' - who can already be defined as anyone they don't like the look of - the temptation to cut an ungrateful and unsupportive electorate out of the equation will be considerable. For their own good, of course.

So the constitutional crisis is real, and the struggle between government and judiciary is important. When a judge is criticised for the length of the sentence he imposes, although he is just following the rules laid down by parliament and which they have given him no discretion to vary, it matters. The rest of us must stand up for the judges and make sure that ministers understand that they were elected to make laws, not to administer them, and that if they try to do both they can (for the moment at least) be un-elected.

For a report in yesterday's Independent, click here
For a recent Times report click here
For Guardian reports click here or here
While for a somewhat different view, click here for the Sun's viewpoint