Important interests go beyond legal rules into territory where judges

have no special expertise. Because disagreement is all pervasive in

relation to human rights, it demeans us as autonomous rational beings

to defer to judges in areas in which they are not experts and makes

our constitution aristocratic rather than democratic. For example in

R.J.B. MacDonald Inc. v. Canada (A-G) (1995) the Canadian Supreme

Court was divided as to whether the undoubted public interest in com-

bating ill health justified overriding freedom of expression by banning

tobacco advertising. It is difficult to see why a judge is better placed

than a democratic assembly to decide such an issue.

Moreover, judges are not directly accountable for their actions, a

fact which might tempt the legislature to be irresponsible and to shuffle

hard choices to the judges. There is no reliable way of discovering

what are the values of the community. A judge might be forced to rely

on his personal opinions or be swayed by the circumstances of the case

before him. Politicians might appoint judges whose views reflect those

of the very politicians whom the judges are supposed to protect us

against. In the UK, contrary to the separation of powers, judges are

not appointed by a formal independent process but are nominated

privately by the Lord Chancellor who is a member of the executive

dependent on the support of the Prime Minister.

Furthermore, according to Waldron, the Ulysses and cigarette

analogies (above) are misplaced. Ulysses and the smoker voluntarily

submit to external impersonal constraints to meet a specific problem

about which there is no disagreement whereas in the human rights

context, we are surrendering our power to decide controversial matters

to the personal judgement of others in an objectionably paternalistic

way. The ‘judge in its own cause’ analogy (above) is also misplaced.

The problem of bias arises when an individual or faction purports to

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Human Rights and Civil Liberties

decide a dispute concerning its own interests. It has no application

where the decision concerns the whole community, since, unless the

decision is made by someone wholly external such as an overseas court,

the decision maker is a judge in its own cause whatever mechanism is

used. Moreover, we all like to be right so that any final decision maker

is a judge in its own cause as to whether its decision is right.

The Human Rights Act recognises this irreducible disagreement.

The Act tries to accommodate both sides by using the advantages of

the courts in applying law in the shape of the European Convention on

Human Rights, even to the extent of scrutinising statutes for com-

patibility with the Convention. On the other hand the Act upholds

democracy by leaving the final word with Parliament while empower-

ing the court to put pressure on Parliament thereby creating an

accommodation in accordance with the separation of powers.

18.2 The Common Law

English lawyers have traditionally used the negative terminology of

civil liberties rather than the more positive language of rights. This is

because the common law embodies the liberal perspective that everyone

is free to do whatever the law does not specifically prohibit. In Hobbes’s

language, ‘freedom lies in the silence of the laws’. However, in a con-

stitution such as that of the United Kingdom which lacks political

checks and balances and where the lawmaker can be easily controlled

by a single political party, the problem lies in ensuring that the laws

are indeed silent.

To the modern reader therefore the following remarks of Dicey (1915,

p. 500) may appear complacent. ‘English law no more favours and

provides for the holding of public meetings than for the giving of public

concerts . . . A man has a right to hear an orator as he has a right to hear

a band or eat a bun’. Similarly Dicey was content to assert that the press

has no special protection but merely the freedoms of ordinary citizens.

Thus press freedom from censorship was, according to Dicey trium-

phantly restored in 1695 merely by not renewing the legislation that

had empowered the Crown to licence printing presses (ibid., p. 257).

The common law’s residual or negative approach therefore depends

on trusting the lawmaker, the executive and the police not to enact or

enforce intrusive laws and on trusting the courts to interpret laws in a

way sympathetic to individual liberty. In connection with judicial

review, for example, we met the presumption of statutory interpreta-

tion, known as the ‘principle of legality’, that clear language or