The relationship between politicians and judges should never be cosy. It is healthy for the two clans to disagree. One, legislators, by their nature represent majorities. The other, by their character, are often concerned with the position of potentially unpopular minorities. An element of creative tension is built into the system. Politicians should not portray judges as fools out of contact with the modern world. Judges, in turn, must not be too quick to dismiss “populist” politics when the essence of democracy is that elected figures are aware of the popular will.

John Denham, the chairman of the Commons Select Committee on Home Affairs, yesterday described the striking-down of control orders by Mr Justice Sullivan as “a bit of a constitutional crisis”. In fairness to him, the phrase “a bit” is an important qualifier. Mr Denham is, nonetheless, a respected individual on the Centre Left of the Labour Party who resigned his position at the Home Office at the outset of the Iraq war from conscience, not calculation. He cannot be viewed as a “Blair stooge” or a “judge-basher”. If persons of his ilk are aggrieved by the fashion in which the courts appear to treat Acts of Parliament, judges themselves should be concerned.

Much of the problem is one of miscommunication. Ministers believe that they are confronting a profound menace to national security of a kind that was not imagined when the Human Rights Act came into force. They are handicapped because there appears to be no institutional device by which they can alert judges about why they are taking what are, in normal circumstances, extreme measures. They see some judges as playing to the gallery of chic opinion, mocking the idea of any “clear and present danger” to British citizens from terrorism.

There is also irritation on the Bench. From the judiciary’s standpoint, ministers appear to be conducting a Dutch auction over civil liberties. They produce the most sweeping restrictions on traditional liberties as an opening bid and then slightly more modest constraints after these have been rejected. Yet there seem to be no institutional means by which judges can signal to parliamentarians what form of control orders might be acceptable to them.

The approach in the United States has been quite different. The Supreme Court yesterday rejected the formula for military tribunals at Guantanamo Bay preferred by the Bush Administration. This is a significant shift in stance but the court has been prepared to permit those who have to prosecute the War on Terror much discretion over the past five years before deciding to become assertive. It has fired an intelligent warning shot, but not attacked or neutered the essence of the strategy.

The judiciary in this country should be as balanced. If not, it will push ministers into radical options — suspending sections of the Human Rights Act, withdrawing from the European Convention on Human Rights or implementing the Emergency Powers Acts 1920 and 1964 — which in turn will marginalise judicial influence. A “bit of a constitutional crisis” would then become a full-blown confrontation.

The decision on control orders must be sent to the law lords as soon as possible. It is for them to decide what the law is. They would, though, do their profession and country a service if they used this ruling to set out which level of threat would merit what type of ministerial response in these, unfortunately, highly unusual times.