Relations between the government and the judiciary have always been strained, even during periods of political tranquillity. But recent clashes between ministers and judges over anti-terror measures, controversial constitutional reforms and the fate of judicial pensions have brought the two sides to the point of open conflict.
At least two senior judges, including a member of the Court of Appeal, are known to have drafted pre-resignation letters, while others have let it be known that they are preparing to return to the Bar if conditions do not improve. In constitutional terms this is the equivalent of a judicial rebellion, a crisis that many believe the government has deliberately provoked.
One senior high court judge warns that the mood is about to turn ugly: "If the government is going to call the judges' bluff it has made a big mistake. Blair can't keep talking about using judicial scrutiny as a means of selling his terror laws to the country while at the same time making dark comments about what he will do to judges who stand in his way." Others talk of recent constitutional reforms that represent an unprecedented challenge to the independence of the judiciary. But high-minded principles of justice and fair government are not all that is at stake. At the heart of this rather exceptional industrial crisis is the very familiar issue of pay. A planned 40 per cent cut to judges' pensions has added financial insult to the injuries done to the constitutional relationship between the bench and the executive.
The government, however, sees it differently. A series of legal rulings that went against Downing Street and overturned key policies on asylum and terror has ruffled ministers' feathers. In particular David Blunkett, whose illiberal policies proved to be most vulnerable to unfavourable court rulings, antagonised the bench by openly criticising judges' decisions and even questioning the place and accountability of the judiciary in the constitution.
Blunkett's successor as Home Secretary, Charles Clarke, and the wily Lord Chancellor, Charlie Falconer, have adopted a more subtle line, issuing veiled threats about the government's commitment to the European Convention on Human Rights, with which the judges have caused so much damage. Falconer says he wants to change the law so that judges have to give more weight to national security when they consider cases of suspected terrorists whose defence is grounded in human rights.
Until now, judges have kept their grievances to themselves, aware that public silence is the price they must pay for their special position in the constitution. But when Gordon Brown joined the attack and brought in laws that will cut their pensions by 40 per cent, some could restrain themselves no longer. Lord Ackner, a retired law lord who has raised the issue of judicial pensions with Falconer, says: "I have been told that some senior commercial judges, particularly those who have invested in their own [separate] private pensions, are ready to go. Relations between the executive and the judiciary are already pretty chilly, but this just makes them chillier and gives a judge a reason to take early retirement."
Falconer has known for some time that he faces a real constitutional crisis. A letter written last October by Alex Allan, permanent secretary at the Department for Constitutional Affairs, warned of mass resignations among the judiciary if the Treasury pressed ahead with its plans. In his submissions to the Senior Salaries Review Board, Allan also highlighted problems of morale on the bench: "Judges find themselves having to manage increasing workloads and demands, subject to higher levels of public scrutiny and operating in an environment in which there is constant legislative and organisational change." He singled out judges of the family courts who had been "subject to sustained criticism" from campaign groups such as Fathers 4 Justice. Some judges have received nuisance calls at home. Others have been harassed outside court.
Lord Falconer may have seen the storm coming but his efforts to avert a crisis have been too little and too late. He has all but abandoned a planned bill that would have maintained the value of judges' pensions when Brown's tax changes take effect next April. And the raw sensitivities raised during the failing negotiations are now plain to see. When tackled about judicial pensions early last month, the normally garrulous Lord Chancellor broke from a freewheeling press conference to read from a typed statement. "I am in discussion with the judiciary on the issue of judicial pensions," he said. "I hope to see those discussions concluded as soon as they possibly can be. The government will work closely with the judiciary to tackle their concerns."
Yet these discussions are unlikely to yield a settlement. The only terms the judges will agree to are those that will either exempt them from the new tax regime or lead to a 20 per cent increase in their salaries. The bill is doomed because the Commons will never agree to something that looks like special pleading on behalf of a minority interest group whose members are still regarded as exclusively white, male, middle class and out of touch.
For the same reason, a mammoth pay rise is just as unpalatable. The 107 high court judges earn £155,404 a year, and the 37 Court of Appeal judges earn £175,671 a year. With hospitals, schools and prisons at the top of Brown's public spending agenda, judges cannot realistically expect special treatment, especially if a pay increase across the bench might trigger calls from other senior public servants for similar treatment.
This all leaves Falconer stuck be-tween a rock and a hard place. As Lord Chancellor he has a constitutional duty, confirmed this year in a written constitutional settlement between the judges and the government, to stand up for the judiciary and argue their corner in the cabinet. But as Tony Blair's former flatmate and the cabinet's chief troubleshooter, he is in no position to charge headlong into a political elephant trap that could end in the government losing another bill.
Lord Ackner, who is able to voice publicly the grievances of the convention-bound judges, challenged Falconer over his proposals when the bill was debated in the House of Lords in November. "I asked him about the bill and what he intended to do to rectify the situation. After hearing me make my points, his reply was to tell me that I was a brilliant judge but should be better placed as an official working at the Transport and General Workers' Union. I thought that was rather cheap and irrelevant. I think he should consider very carefully what is at stake here and treat the issue with the degrees of respect and seriousness it deserves."
If he doesn't, argues Ackner, judges who have built up hefty pensions will start leaving in droves. One judge has already opted for early retirement. This summer Hugh Laddie, 59, declared his intention to leave the bench, citing "boredom" as his reason. He was the first judge in 35 years to resign voluntarily from the high court and therefore the first to breach the unwritten rule that judges are supposed to leave public office only when asked to go. A close barrister friend of his said last month that boredom had very little to do with his departure. "He was an exceptional judge who should have gone on to the Court of Appeal. I think when other, less talented, judges were appointed ahead of him he decided he'd had enough of being messed about by the powers that be."
Now the taboo has been broken, other judges are expected to follow in Laddie's footsteps. If they do, the government faces a bitter, and most unusual, winter of industrial discontent.
Robert Verkaik is legal affairs correspondent for the Independent
The facts: judge for yourself
Numbers Senior: 12 law lords; 33 Court of Appeal and 107 high court judges. Junior: 624 circuit judges, 1,417 recorders, 416 district and 731 deputy district judges. A further 129 district and 167 deputy district judges sit in the magistrates' court.
Pay The Lord Chief Justice, the most senior judge in England and Wales, earns £211,399. A high court judge gets £155,404, a district judge £93,483.
Hours Most courts sit between 10.30am and 4.30pm, but a diligent judge will spend the early part of the morning studying case papers. The writing of long and technical judgments means that the judge will have to sacrifice some weekends.
Holidays The periods of the year when courts sit full-time are fairly short, so it is common for judges to have vacations from the end of July into September. On top of that, a judge will usually have three weeks for Christmas and another fortnight off at Easter.
Pensions Payable at 65, provided a judge has completed at least five years' service. The annual rate is 1/40th of pensionable pay multiplied by the length of service subject to a maximum equal to half of pensionable pay after 20 years' service. In addition, the judge receives a lump sum equal to 2.25 times the annual rate of the pension. When Brown's bill comes into force next April, any money in an individual's pension fund above £1.5m will be taxed at 55 per cent.