Rift marks new low in relationship

The Lord Chief Justice's extraordinary public condemnation of the Home Secretary's latest "lock 'em up" initiative, marks an all-time low in their relationship.

Judges guard their independence jealously and it will have been Michael Howard's threat of yet more fetters on discretion that most upset Lord Taylor.

Coming at a time, when judges and the Lords are anxious to abolish the mandatory life sentence for murder - saying it is unfair to sentence a terrorist to the same penalty as a battered wife who kills - it is not surprising that Lord Taylor spoke out at the imposition of yet more curbs on their scope to reflect differences in crime through sentencing.

What is surprising is that he cast his critical net far more widely to include criminal justice policy generally.

His was the loudest voice, among many, to say that more resources should be spent on detection and policing rather than incarceration.

"I do not believe that the threat of longer and longer periods of imprisonment across the board will deter habitual criminals," he said. "What deters them is the likelihood of being caught, which at the moment is small."

As the head of the Court of Appeal and the country's most senior professional judge, he will not have been speaking simply for himself, when he launched his attack on the Home Secretary's proposals. He had taken advice from other senior judges and been assured of their support.

Despite Mr Howard's public dismissal of Lord Taylor's comments last night, the Home Secretary must be worried by the ferocity of the attack. Lord Taylor is very influential in the House of Lords. He was party to the mauling of last year's Criminal Justice Bill and watered down the controversial decision to erode the right to silence.

He is a powerful enemy to have made. But he is not the first judge to have spoken out against Mr Howard's tough criminal justice policy.

In 1993, Lord Woolf described his last law-and-order initiative as short sighted and irresponsible. He said: "The easy option, which has a miserable record of failure, is to send more and more people to prison regardless of the consequences, including the shocking waste of resources which could be spent elsewhere." Seven other senior judges came out in support.

Mr Howard was stung, but clearly not deterred from incurring judicial wrath when Lord Taylor made clear his views at an informal meeting last week. While such chats between judges and ministers have taken place for many years, it is only since Lord Taylor took office in 1992 that judges have so damagingly and publicly voiced their views outside court.

Lord Lane, his predecessor, was known to have had violent disagreements with previous Home Secretaries, but remained silent.

The judges' desire to speak out has coincided with their changing role as law makers in Britain's unwritten constitution. The "new" judiciary are increasingly called upon, and unafraid, to protect the citizen against the state. Judicial review of government decisions has been a big growth area in the law. And Michael Howard has been forced to amend legislation and change government policy more than any other minister.