Bill of Rights of 1689

The Bill of Rights of 1689 affirmed that the monarchy was subject to the law. Not only was the Crown therefore forced to govern through Parliament, but also the right of individuals to be free of unlawful interference in their private affairs was established.

Summary of Entick v Carringotn^[1]

Two King’s messengers, under the authority of a warrant issued by the Secretary of State, broke and entered Entick’s house and took some papers. When the messenger was sued by Entick for trespass to his house and goods, it was argued that the warrant was legal as the power to issue the warrants was essential to government as “the only means of quieting clamours and sedition”.

In the absence of statutory immunity, every individual is liable for wrongful acts they commit and for such omissions as give rise to actions in tort at common law or for the breach of statutory duty. This according to Entick applies even if an officer representing the Crown claims to be acting out of executive necessity.

The effects upon contemporary case law

In Entick, Lord Camden revealed an enthusiasm for liberty:

“The great end, to which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole.”

This would later be echoed in more contemporary case law having definitive consequences for the rights of the citizen, the power of government and the effectiveness of the rule of law in controlling the official effect exercise of power.

Such a decision stressed the value of personal liberty, and the necessity of protecting personal property against official interference. Simultaneously, the remedy of habeas corpus was being developed. Economic and Social developments since 1765 have qualified the decision of Lord Camden that in the absence of precedent no common law powers to search and seizure will be recognised; Entick still exercises influences on judicial attitudes to the claims of government.

As per, R v Inland Revenue Commissioners, ex parte Rossminister Ltd^[2] although Lord Camden’s approach would be discerned by Lord Denning in the Court of Appeal, a much more restrictive approach would be adopted by the House of Lords by Lord Scarman who would quote Lord Camden’s decision:

“No man can set foot upon my ground without my license, but he is liable to action, though the damage be nothing…If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him.”

Further to this, the case of Burnah Oil Company v Lord Advocate^[3] which held that the Crown was under a duty to compensate the subject for property taken in the exercise of prerogative powers.

Further impact of Entick

Rights and “freedoms” were regarded negatively by the United Kingdom; so a person was free to do anything subject to the provisions of the law. So there was no guarantee that freedom would not be contracted by the incremental encroachment of legislation until little freedom remained. In Entick, Lord Camden made it clear that government, if it is to be free, to interfere with individual rights, must be able to point to specific statutory or common law powers. The problem there would be that if these powers did not exist, they could always be created by new legislation.

It is a basic rule of constitutional law that the organs of government must operate through law. If the police need to detain a citizen or if taxes are to be levied, the officials concerned must be able to show legal authority for their actions and they may be challenged in a court of law as in Entick.

In the common law tradition, the system which protects the private rights of private individuals is to an important extent the system which enforces the performance by public bodies of the duties to which they owe to the public, at least if the public is considered as comprising of private individuals.^[4]

For example, the Police and the Inland Revenue Inspectors and Customs and Excise Officers have considerable powers under various Acts to obtain warrants and enter and search premises and seize property; under such Acts as; Police and Criminal Evidence Act 1984, Taxes Management Act 1970 and Customs and Excise Management Act 1979. Acts which go beyond their legal power may be declared ultra vires and invalid by the courts. It is because of this fundamental principle of legality that legislation must be passed through Parliament if, e.g. the police are to have additional powers to combat terrorism. The rule of law serves to strengthen the democratic principle, since new powers of government affecting individual liberty may be conferred only by Parliament.^[5] As per Entick, Lord Camden CJ:

“If it is law, it will be found in our books. If it is not to be found there, it is not law.”

While some statutes seek to limit rights, others may grant protection which did not exist at common law, such as; common law discrimination on the grounds of sex or race was not generally prohibited. Parliament intervened by means of the Race Relations Act 1976 and the Sex Discrimination Act 1975.

This type of legislative intervention by Parliament was limited as legislation represented a limited response to a perceived misbehaviour. Until the enactment of the Human Rights Act 1998 the practice was to provide limited remedies against particular abuses but to stop short of providing any general declaration of particular rights.

Bibliography

• Cases and Materials on Constitutional and Administrative Law. Allen, M & Thompson, B. Blackstone, London. Sixth edition, 2000.
• Constitutional and Administrative Law. Bradley, A.W. and Ewing, K.D. Longman, London. Twelfth Edition, 2000.
• Legal Philosophies. Harris, J.W. Butterworths, London. Second Edition, 1997.

Footnotes

^[1] (1765) 10 St Tr 1030

^[2] (1980) AC 952

^[3] (1965) AC 75

^[4] ibid 1 and consequentially Cooper v Wandsworth Board of Works (1863) 14 CB (nNS) 180

^[5] Constitutional and Administrative Law. Bradley, A.W. and Ewing, K.D, Champter 6: pg 106.