Yesterday’s court rulings highlight the delicate relationship between the executive and the judiciary — one in which judges increasingly hold ministers to account, and find them wanting. The two cases are not isolated. In recent weeks, ministers have suffered a series of judicial hammer blows — from deporting terrorist suspects to powers to block the release of offenders on parole. So are our judges getting restive?

Tension between the judiciary and executive is nothing new. In the past two decades successive home secretaries have felt bruised by the courts, notably over a whittling away of their powers to determine jail terms — or on asylum or immigration policy. Now the so-called War on Terror has given fresh impetus to the notion that judges seem to be getting too big for their boots.

More than one home secretary has attacked judges for being liberal and out of touch. The antipathy has come from Tories and Labour alike; it is not the preserve of either. Nor is there any judicial agenda — political or otherwise — driving one or more judges to target ministers. Kenneth Baker and Michael Howard, both Conservative home secretaries, suffered notorious defeats; similarly, David Blunkett, as Home Secretary, was prompted to say: “I just want judges that live in the same real world as the rest of us . . . who help us and help you [the police] to do the job.”

There were also angry clashes between Lord Taylor of Gosforth and Mr Howard over legislation to create minimum sentences. His successors, Lord Bingham of Cornhill and Lord Woolf, took up the baton. As home secretaries and lord chief justices changed, the conflict became less public, less “megaphone” than “backroom” diplomacy. But tensions remained.

The two key battlegrounds are sentencing and the growth of judicial review. Just as ministers resent rulings that their policies are unlawful, so judges fiercely resist incursions into their independence — the freedom to match sentences to the crime. But ministers have wanted to get a grip on what they see as “soft” sentencing by judges: Mr Blunkett clashed with the judiciary over what he saw as their leniency. They also want to control the rising number of prisoners. In came the flashpoint of minimum sentences that fetter judges’ discretion. Now there is talk of a sentencing commission.

Meanwhile, judges have been flexing their muscles. Almost unknown 30 years ago, judicial review — which allows people to challenge the decisions of public bodies — is an area of judge-made law that has taken off in the past two decades. In 1980 there were 491 applications to the courts compared with 3,293 in ten months of 1996.

Why? Some say that an overweening administration — 18 years of Tory and then 11 years of Labour — with weak oppositions created a vacuum into which lawyers stepped, challenging laws in the courts: what Lord Irvine of Lairg, Labour Lord Chancellor, called a “democratic deficit”.

There was also growing awareness of the European Convention on Human Rights. David Pannick, QC, a leading judicial review barrister, says there was “a willingness among lawyers to start testing in the European Court of Human Rights aspects of public policy, such as ministers’ powers over sentencing that were taken for granted in domestic law but which, on analysis, were incompatible with the principles of the separation of powers”.

The Strasbourg-based court was also very willing, he adds, “to call a spade a spade”. When the European convention was enshrined into domestic law in the shape of the Human Rights Act in 2000, it did not give judges new powers — but enabled them directly to apply convention principles, with some humiliating results for ministers. The rulings stripping their powers over jail terms were in line with the principle that the executive should not be involved in what was a judicial function.

So what ministers now feel are shock waves from a gradual process of constitutional reform that puts clearer blue water between the judiciary and the executive.

Can it get worse — or judges’ powers increase? The separation of powers will be entrenched further with the new supreme court next year. Judges will not, like their US counterparts, be able to strike down statutes. But they will have a higher profile, be more confident and be seen as more authoritative. Still more imaginative human rights challenges may come before them; plus challenges to ministers’ efforts to square counter-terrorism measures with civil liberties.

None of this is reversible. The clock cannot be turned back. Judges will continue to hold the executive to account — it is their role. And less populist politicians know that.

But tensions will stay because, Mr Pannick says, “it is a feature of free societies, arising because judges sometimes have to rule government policies wrong. If politicians aren’t regularly irritated by judicial decisions, judges are not doing their job.”

They fought the law . . . and the law won

2002 Law lords rules that Home Secretary cannot set minimum jail terms for adult murderers

2004 Law lords’ Belmarsh ruling says that the indefinite detention of foreign terror suspects without charge or conviction is unlawful

2005 Law lords rule that evidence that might have been obtained by torture cannot be used against terror suspects in UK

2007 Law lords rule that the most restrictive aspect of control order regime — 18-hour daily curfews — breach human rights

2008 Court of Appeal quashes terrorism convictions under Section 57 of Terrorism Act 2000. Five Muslims cleared after judges ruled that reading Islamist material was not illegal unless used to inspire violent extremism

2008 Court of Appeal blocks deportation of Abu Qatada and two Libyans back to Jordan and Libya respectively

2008 Court of Appeal rules that Home Secretary cannot block Parole Board recommendation to release prisoners serving between 15 years and less than life

2008 High Court declares halting of BAE investigation unlawful

2008 Appeal Court blocks Attorney-General’s attempt to increase four-and-half-year jail term on convicted terrorist Sohail Qureshi

2008 High Court says that rules imposed to allow freezing of terror suspects’ assets are unlawful

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