Senior judges are sensitive flowers. They are apt to shout “judicial independence” whenever their equanimity is disturbed, whether it is a gust of wind or a tornado. This risks their protests being disregarded or dismissed as special pleading.

At one level, the stalemate between the senior judges and Lord Falconer of Thoroton, the Lord Chancellor, over the new Ministry of Justice is about the funding of the courts service. But the anger of the judges is about much more than money.

The Government is itself largely at fault for the typically inept way that the changes have been implemented. We have been here before, four years ago, when the abolition of the post of Lord Chancellor was suddenly announced. The aims were correct and overdue: separating the conflicting executive, legislative and judicial roles, while establishing a Supreme Court and an independent Judicial Appointments Commission. After a lot of huffing and puffing, the judiciary secured a belt-and-braces guarantee of their independence.

The new ministry, bringing courts, legal aid, prisons and probation together, has been introduced in a similarly crass manner. The changes were bounced through by John Reid, the outgoing Home Secretary, who demanded a terrorism and security department as an urgent priority, and persuaded Tony Blair, against the opposition of the Whitehall establishment. Gordon Brown and the Treasury were acquiescent, although no reason was given for it to happen now, before the change of prime minister.

At one level, the judges fear that the insatiable demands of the prison service will squeeze the money available for the courts, although in the past there have been transfers of money from capital building on courts to legal aid. So the judges have wanted the courts budget independently set and ring-fenced.

The judges argue that the new ministry is not just a machinery of government change but could produce serious conflicts of interest. There could be pressures on the judges either to cut sentences or not to send people to jail. The judiciary point to Ireland, the Netherlands and Denmark, where court administration is autonomous, with more judicial participation.

The underlying dilemma was noted by Lord Justice Thomas: “It is the duty of the executive to provide the necessary prison places or funding for community sentences to give effect to the decisions of the courts. The minister in charge of penal policy [now the Lord Chancellor] must as a matter of law implement the decisions of the courts and find the resources to do so.”

The impasse could mean that the Lord Chief Justice has to resort to writing to Parliament to protest that the Lord Chancellor is breaching his statutory duty to protect the administration of justice. If he could not command the confidence of the judiciary, he could hardly stay in office. We are still well short of that, or the riots over the Chief Justice in Pakistan. As Lord Holme of Cheltenham, chairman of the Lords Constitution Committee, said: “The Lord Chancellor and his officials should be locked in a room with the senior judiciary until they mutually agree appropriate safeguards.” This is yet another case of the Government blundering into unnecessary confrontation.

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