CHAPTER 5: LEGAL CONSTRAINTS
set aside or refuse to give effect to duly enacted primary legislation.4 Judge-declared
common law is thus no impediment to the exercise by Parliament of its law-making
powers, though clear words are required to override a fundamental right.5
5.4.
Attempts to fashion a common law constraint on the bulk collection of data have
focussed on 18th century cases concerning “general warrants”. In 1762, the Home
Secretary, the Earl of Halifax, issued a general warrant to search for Mr John Entick,
who had written libellous publications concerning both the king and his Parliament.
The warrant also authorised its executors to “seize and apprehend, and to bring,
together with his books and papers, in safe custody before me to be examined
concerning the premises and further dealt with according to law.”6
5.5.
The Lord Chief Justice, Lord Camden, held that:7
“... we can safely say that there is no law in this country to justify the defendants
in what they have done; if there was, it would destroy all the comforts of society;
for papers are often the dearest property a man can have... This is the first
instance of an attempt to prove a modern practice of a private office to make and
execute warrants to enter a man’s house, search for and take away all his books
and appears, in the first instance, to be low, which is not found in our books.”
5.6.
A similar view was taken in the later case of John Wilkes. In 1763 Wilkes wrote a
pamphlet critical of George III. Considering that the pamphlet was seditious, a
Secretary of State issued a general warrant authorising the police to search for and
identify the author, the publisher and their associates.
5.7.
Some of those subjected to this treatment challenged the warrant in the courts, which
agreed that the Government had acted outside the bounds of its powers. In one case,
Lord Chief Justice Pratt stated that:
“To enter a man’s house by virtue of a nameless warrant, in order to procure
evidence, is worse than the Spanish Inquisition.”8
The same judge noted in another case:
“The defendants claimed a right, under precedents, to force persons’ houses,
break open escrutores, seize their papers, &c, upon a general warrant, where
no inventory is made of the things thus taken away, and where no offenders
names are specified in the warrant, and therefore a discretionary power given
to messengers to search wherever their suspicions may chance to fall. If such
a power is truly invested in the Secretary of State and he can delegate this
4
5
6
7
8
Save where EU law so requires, as Parliament itself provided in the ECA 1972. Three judges
suggested that parliamentary sovereignty might not be absolute in R (Jackson) v Attorney General
[2005] UKHL 56.
Morgan Grenfell v Special Commissioner of Income Tax [2002] UKHL 21; [2003] 1 AC 563, para 45.
Entick v Carrington 95 E.R. 807, p. 810.
Ibid., pp. 817-18.
Huckle v Money (1763) 2 Wilson 205 95 ER 768.
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