This fight will go to 15 rounds

Lord Taylor is retiring, but the constitutional struggle between judges and government will continue - even under Labour

There will be sighs of relief among Conservative politicians - notably Michael Howard, the Home Secretary - that fresh talent is poised to take over two of the most senior judicial posts in the land. The retirement of Lord Taylor from his post as Lord Chief Justice will cause regret among many in the Establishment, not least because ill health has forced him to retire early. But the Chief has become a thorn in the side of the Government, as testified by his caustic attack yesterday in the House of Lords on Mr Howard's plans to introduce mandatory heavier sentencing for a range of repeat offenders.

Ministers will hope that those judges who are now expected to win advancement will give them an easier time. Mr Howard will certainly be aiming to cool the war of attrition he has fought with the judiciary since he took over as Home Secretary three years ago. Those hopes centre first on Sir Thomas Bingham, the Master of the Rolls, who is expected to be named as the new Lord Chief today. After all, he has been far more restrained than Lord Taylor in airing his views on the sentencing issue. He is also remembered for giving Sir Nicholas Lyell, the Attorney-General, the benefit of the doubt over the use of public interest immunity in the arms-to-Iraq affair.

The other name in the frame is the liberal Lord Woolf, who is due to return from the House of Lords to take over the vacated position of Master of the Rolls. While famed for his inquiry into the Strangeways riots, which painted such a poor picture of prison conditions, he is not given, ministers might comfort themselves, to the kind of confrontational approach that made Lord Taylor so difficult to handle.

Nevertheless, it would be a serious mistake to assume that Lord Taylor's retirement marks a ceasefire between the judges and government. Anti-Establishment in their own, differing ways, neither of today's expected appointees should be expected to usher in an era of judicial conservatism.

The reason for the fact that conflict will continue to rage lies at the very heart of the British system of law and government. Unlike in the United States, there is no strict separation of powers in the UK between the judiciary, the legislature and the executive. Nor is there is a supreme court to test whether legislation passes muster against a written constitution or bill of rights. In practice this means that the three strands of public administration - the courts, the government and parliament - invariably find themselves at odds, straining at boundaries between them that are set by no more than convention. Therefore, a significant section of the judiciary, law lords past and present, legitimately but contentiously enter the parliamentary debate.

Quite apart from the structural instability in the constitution, there is no reason to believe that either of today's appointees will shrink from showing judicial creativity alongside an unquestioned judicial independence. Both Bingham and, through a root-and-branch review of the civil justice system, Lord Woolf have put their fingers on the nightmare that is represented by pursuing disputes through the courts, the costs of which have become, to quote Sir Thomas, "scandalous".

Lord Mackay, the Lord Chancellor, wants to press ahead with breaking down the Bar's last great monopoly of exclusive rights of audience in the Crown Courts. In Sir Thomas he is likely to find an ally. Sir Thomas has already demonstrated his ability to stand up to the massed ranks of his own profession. Such firm judicial hands will be needed as large numbers of lawyers squirm and protest at attacks on their traditional ways of doing things.

Sir Thomas has already evoked the ire of the Daily Mail for suggesting that judges might formulate new privacy rights for individuals if government failed to do so. Both he and Lord Woolf have called for the European Convention on Human Rights to be incorporated into UK law, a move that Sir Thomas, a dissenter in the Spycatcher fiasco, has said would restore Britain to its former place as an international standard-bearer of liberty and justice. Lord Woolf has pioneered the idea of a director of civil proceedings with power to initiate and sponsor judicial review cases when it is in the public interest for the courts to scrutinise official decisions.

Neither of these towering figures can be expected to be bothered about upsetting the Conservatives. They cannot be assumed to be Tories (Lady Bingham campaigned for the Liberal Democrats at the last election) nor do they fit neatly, or much at all, into the kind of conservative legal Establishment that governments, of whatever political colour, always crave. Both would be as impervious to diktats from a Labour government as they would from a Conservative one.

Once the Labour Party gains power, however, the battles between government and judiciary are likely to be of a different kind to the onslaught delivered yesterday by Lord Taylor. Labour's Lord Chancellor in waiting, Lord Irvine, has adopted the most restrictive view possible on the role of judges in challenging official decisions. In a recent speech he attacked Lord Woolf for breaking the constitutional imperative of judicial self-restraint.

He levelled similar criticisms against Sir John Laws, a high court judge, who, like Woolf, is a former Treasury counsel with long experience of acting for governments. Even the left-of-centre judge Sir Stephen Sedley has been chastised by Lord Irvine for suggesting that the will of Parliament could be subject to some higher set of fundamental principles.

Lord Irvine offers a spirited defence for his championing of parliamentary supremacy: that he is radical politician, not a judicial radical. While he has reaffirmed his commitment to incorporating the European Convention on Human Rights into British law, he has attacked the way that the European judges decide cases brought under its terms. That leads to a conclusion that things are going to get worse between ministers and judges before they get better.The source of the problem lies in Lord Irvine's judicial philosophy, which rests on the belief that legislative, executive and judicial functions of government are distinct and separate.

We can be assured that in the absence of better mechanisms for checking abuses of executive power, ministers and officials under a Labour government will not be tossing away their copies of The Judge Over Your Shoulder, the Whitehall document on how to avoid the judicial lions' den, for a long time to come.