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This week’s Queen’s Speech had little to do with governing the nation and everything to do with setting out dividing lines for the election, so in the debate that followed, I took the opportunity to set out a problem that I very much hope the next Government will resolve.

One of the biggest threats to the democratic authority of Parliament and Government has come from the judges.

Over the past quarter of a century, we have seen a steady shift in power to the courts. To begin with, we saw an expansion of the power of the courts to review the exercise of power by the Executive. Traditionally, this power was exercised with restraint, but the courts no longer feel so constrained.

In 1995, Lord Irvine, later Lord Chancellor, called for judicial restraint, and gave three reasons: the constitutional imperative, whereby Parliament gives powers to Ministers and others, for good reasons and in reliance on their knowledge and experience; the lack of expertise which made the courts ill-equipped to take these decisions; and the democratic imperative, whereby politicians derive authority in part from their electoral mandate.

That is the nub of it: Ministers and MPs can be booted out at the next election; judges cannot.

The Human Rights Act made the situation worse. The Human Rights Act requires our courts to apply the European Convention on Human Rights in every decision they make. The Convention was drawn up in the aftermath of WWII as a safeguard against any revival of Nazism and the rights it seeks to protect are framed in very wide terms. Its authors would turn in their grave were they able to see the cases brought in reliance on it today.

Any decision about these rights requires a balancing of competing rights. The fundamental question is who should be responsible for striking that balance: elected MPs or unelected judges? On terrorism, Parliament twice, after great debate, reached its view. Yet twice the judges have held that Parliament got it wrong. In doing so, they were not seeking to deliberately challenge the supremacy of Parliament, but doing what Parliament had asked them to do.

The question is this: should Parliament have asked them to do it? I believe not.

In his recent speech, the Director of Public Prosecutions took a different view, yet he failed to engage with this crucial argument. What he needed to do, but didn’t, was to justify the transfer of responsibility for balancing competing rights from elected politicians to unelected judges.

The DPP suggested the Supreme Court might lead to a constitutional court. Yet in other jurisdictions where courts have a political role, the political backgrounds of candidates for judicial office are scrutinised. I do not think we want to go down that road, but if judges are to continue to make what are in effect political decisions, people will be increasingly interested in the political background of judges.

I hope that David Cameron renews the efforts of the last Conservative Government to persuade the European Court of Human Rights to increase the extent to which it respects the right of member states to decide these matters themselves. If the Court saw itself as a backstop to prevent the infringement of fundamental rights, it would command greater respect. It should be less prone to intervene in decisions which involve the balancing of competing rights.

David Cameron proposes to replace the Human Rights Act with a British Bill of Rights; I hope it will restore responsibility for this balancing act to politicians that the public can elect or boot out as they see fit.

These matters do not often hit the headlines, but they are fundamental to the rights and freedoms of the British people. Parliament’s ability to defend those rights has been seriously weakened, and I hope that the next Government will be able to redress the balance.