Rule of law and separation of powers — SQE1 Public law question
A worked single-best-answer question on rule of law and separation of powers, with why each wrong option is wrong — the way SQE1 traps candidates.
The Secretary of State, concerned about leaks of sensitive documents, signs a warrant authorising officials to enter the home of Farida, a journalist, and seize her papers. No statute or other legal rule authorises such warrants. The officials enter and remove papers. The Secretary of State argues that the warrant was necessary in the interests of the state and that such warrants have been issued for many years.
Which of the following best describes the lawfulness of the officials' actions?
- ALawful, because the executive may take action necessary to protect the state.
- BLawful, because long-standing practice establishes a power to issue such warrants.
- CUnlawful, because the officials acted without legal authority, so their entry and seizure were a trespass.
- DLawful, unless Farida can show that the Secretary of State acted irrationally.
- EUnlawful, but only because the Secretary of State did not obtain the prior approval of Parliament.
Show answer and reasoning
Rule: Public officials must be able to point to legal authority for any interference with an individual's person or property.
- A State necessity is not a legal justification for interference with property; legal authority is required. (wrong rule)
- B Long-standing practice cannot create a power where the law gives none. (wrong rule)
- D Irrationality is irrelevant where there is no legal power at all. (wrong rule)
- E Prior parliamentary approval of an individual warrant is not the requirement; the act needed a legal basis, which was absent. (wrong rule)
Source: Entick v Carrington (1765) 19 St Tr 1029
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