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Don’t leave it to the lawyers

By Alex Penk August 14, 2018

One day, a man called John Entick was at home when in walked Nathan Carrington and three other government agents. They started breaking doors, boxes, and drawers, looking for treasonous materials. They didn’t find any, and not surprisingly, Entick wasn’t too happy. He took Carrington and the other agents to court in what turned out to be one of the great cases of all time.

It’s a case about government power and the rule of law. When government agents can walk into your house and start looking through your things, powerful people can exercise a lot of control. This kind of power will probably be abused, for example by targeting people who say critical things about the government. One of the ways we protect against this kind of abuse is by saying there has to be a good legal reason to do what Carrington and the other agents did.

When law rules, everyone has to obey it, even the most powerful people in the land

Carrington and the others were actually King’s messengers. They were following orders from the Earl of Halifax, one of the King’s Secretaries of State and a Lord of the Privy Council—in other words, a pretty powerful member of the government and the aristocracy. They even had a warrant from the Earl to enter and search Entick’s house—so what chance did he have? Every chance, as it turned out, because the Court said that there was no law giving the Earl the power to issue that warrant, meaning the messengers were guilty of trespass.

When the law rules, everyone has to obey it, even the most powerful people in the land. No one is above the law, and the law treats everyone equally. That’s just as important now as it was when Entick’s case was decided in 1765. The rule of law is a precious part of our legal heritage, as the Rt Hon Dame Sian Elias, Chief Justice of New Zealand, made clear when she gave our annual Sir John Graham Lecture recently. Quoting TS Eliot, she pointed out that this kind of tradition can be “the means by which the vitality of the past enriches the life of the present.”

“Any tradition worth having ‘cannot be inherited, and if you want it you must obtain it by great labour.’”

But she also told us that it’s a fragile heritage, “like a cat’s cradle,” so that “it is easy to move a strand here and not realise the damage that is done there.” Our constitutional heritage—our rules for government and public power—can be easily eroded. How can we avoid this? The Chief Justice referred to Eliot again: “any tradition worth having … cannot be passively inherited, it can be obtained only by ‘great labour’.”

This “great labour” starts with talking about our constitutional heritage so that all of us, not just lawyers, know what it is and why it matters. It means renewing and restoring this heritage where it’s been eroded, and it means careful adaptation where that’s necessary.

If law is to rule, it must be understood and widely valued. Remembering our history, re-telling the stories of John Entick and others, is a good place to start.

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