An Englishman’s home is no longer his castle
The Times on how many ways the State can enter your home:
In the past few decades the number of new powers of entry becoming law has increased from fewer than ten in the 1950s to more than 60 in the 1990s. The laws are often vague, providing sweeping power to officials and little protection for private citizens.
Today we have no way of knowing the circumstances in which our home may be entered without consent, and what powers officials have. Force can be used in exercising almost all the powers. The slightest questioning of an official could be deemed as obstruction and result in a fine of up to several thousand pounds or even imprisonment.
Of course, the State must have a right to forcefully enter someone’s house in emergencies where life and limb are at stake. But the problem is that most of these powers do not deal with such emergencies.
Read the whole article, and the report (112 page, 382Kb PDF) that inspired it, entitled “Crossing the Threshold: 266 ways the State can enter your home”.
The idea that an Englishman’s home is his castle was famously given early expression in a different context by Sir Edward Coke, first Lord Chief Justice and framer of the Petition of Right (1628), in The First Part of the Institutes of the Laws of England of the same year.
It was understood then that to cross the threshold of someone’s property is to move from a public to a private world, a world in which, broadly, different social conventions, different moral obligations and different legal standards apply.
Of course, the state has important reserved rights to enter homes in the public interest, rights that have expanded over time by democratic process, here as in other countries.
But over the following three centuries it remained true in Britain that the home was enshrined by law and tradition as a zone free from state interference – somewhere to drop one’s guard, to relax and to enjoy private family life.
- Under English law, the citizen’s home has traditionally been regarded as a privileged space. The courts have insisted that servants of the state cannot enter a private home without the occupier’s permission unless a specific law authorises them to do so.
- Since the middle of the 20th century, the number of such legal provisions – powers of entry – has grown enormously, mirroring the expansion of the role of the state. There are now 266 powers allowing officials to enter a private home as of right.
He identifies a decade-upon-decade increase.
- A number of these powers originate with European Union directives and regulations, rather than with an Act of Parliament passed by the UK’s elected legislators.
He later documents 12 such powers.
- As a result of the proliferation and variety of entry powers, a citizen cannot realistically be aware of the circumstances in which his home may be entered by state officials without his consent, or what rights he has in such circumstances.
This seems to me an erosion of the rule of law, in the sense that “complicance must be possible”.
After all, how can one comply with the law, except by accident, if one can’t know the law?
- Force can be used in the exercise of almost all these powers. In part this is due to its specific authorisation by law; in part to the courts’ readiness to imply a right to use force on grounds of necessity.
- In many cases, discretion as to what is considered as reasonable behaviour in exercising an entry power is left to the judgement of those wielding the entry power.
I would be surprised if the courts could not test what was “reasonable” and, if they found it was unreasonable, could not apply a remedy.
- Many powers are drafted so broadly that the citizen has little or no protection if officials behave officiously or vindictively. Some carry draconian penalties for obstruction, including heavy fines and prison sentences of up to two years.
- Record-keeping by government agencies on how they use these powers is highly variable and sometimes seriously inadequate. For example, requests made under the Freedom of Information Act show that Her Majesty’s Revenue and Customs keeps no regular record of the number of occasions on which its officers use the Writ of Assistance (one of the most intrusive and unregulated entry powers enjoyed by any state official).
Now that in particular seems pretty dreadful. As the author explains, the police are obliged to keep records under PACE. So why does the HMRC (and others) not have a similar obligation?
- Entry powers are in serious need of reform. A new Act of Parliament should harmonise the procedural provisions of all existing entry powers and protect the citizen by making accountability and transparency paramount.
And making it easier for the citizen to be aware of the powers. New legislation authorising entry powers would refer to (say) section 4 of the Entry Powers Act.
- Officials should always seek permission to enter a home if possible, even when they have a power to enter without it. A reasonable time for entry should be specified.
- With the exception of the emergency services, state officials should always have to get a warrant from a magistrate before they can force entry to a private home. The magistrate should carefully scrutinise their case and refuse a warrant where it is unnecessary.
- The exercise of entry powers should be thoroughly documented, and statistics on their use made public. This will put pressure on officials to use them in a reasonable and proportionate manner.
It seems ridiculous that this isn’t already the case.
The state’s behaviour in the case of Harriet the cow seems ridiculous:
The family had always resisted the slaughter of Harriet by legitimate, legal means such as appealing to the courts and contacting their MP. Yet there was no suggestion that they would assault DEFRA inspectors acting in pursuance of their duties. So why did the Department feel it necessary to send 12 police officers?
And 10 officials.
Nobody alleged that Harriet would be spirited away, so why did the team arrive secretly, early in the morning? While these concerns relate to the decisions taken by individual inspectors and their managers, a more significant issue is that the powers of state officials in this area permit just this sort of behaviour.
Finally, the author provides a very interesting quote from AJP Taylor, writing in 1965 that:
Until August 1914 a sensible, law-abiding Englishman could pass through life and hardly notice the existence of the state, beyond the post office and the policeman. He could live where he liked and as he liked. He had no official number or identity card. He could travel abroad or leave his country for ever without a passport or any sort of official permission. He could exchange his money for any other currency without restriction or limit. He could buy goods from any country in the world on the same terms as he bought goods at home.
Compare and contrast to the situation today.
By the way, I hope your kids have a licence for early years childminding if they plan on doing any…