THE FIGHT IS FOR CONSENSUAL GOVERNMENT:

The key point to grasp about human-rights laws is that they are gateways for judges to play a political role. Under existing human-rights law - as established in the Human Rights Act, which incorporates the European Convention on Human Rights into UK law - members of the public can take public bodies to court for failing to respect or uphold their human rights. Once a person's grievance against a public body gets through the gateway, it becomes a judicial function to determine whether the body is or isn't in breach of human rights. This decision will be made by judges exercising an extraordinary degree of latitude. The political gateway function explains why views on human rights tend to be polarised. The human-rights lobby is wary of democracy, lest the majority should oppress a minority, so it sees the judiciary as a necessary means of fettering majoritarianism and of safeguarding civilised society. On the other hand, vesting judges with a political role is something that many people find wrong in principle.

Even if the point of principle is ignored, the recent history of judicial political interventions has caused many to question whether judges should have been given such formidable powers under the Human Rights Act. The human-rights lobby has cheered each time another issue has passed through a human-rights gateway to be overseen by judges. Assisted suicide, extradition, care-home admissions, local-authority domiciliary care, prisoners voting, suing the Ministry of Defence, suing the police and welfare benefit reforms are just some of the many issues that the judiciary is now empowered to rule on under the rubric of human-rights law.

A number of recent policies that were, effectively, created by these judges have been received as absurd. The best known absurdity being the recent ruling that UK law on prisoner enfranchisement is unlawful and, say the courts in Strasbourg and the UK, should be changed. But there have been many other examples of problematic human-rights judgements, such as: when the courts have claimed that dementia sufferers receiving good care are living in 'gilded cages'; when the courts allowed the police and the Ministry of Defence to be sued for negligence; and the attempts by some judges to nudge parliament to legalise assisted suicide.

It was clearly time for a backlash.

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