Contents

Chapter 6
Accountability of the Crown and its employees

Accountability of Ministers

6.41The two options, immunity of Crown employees and indemnity of Crown employees, both have the added issue of whether ministers should come within the scope of the provision, or whether it should be limited to Crown employees only (non-state sector employees, in the case of the immunity option as state sector employees are already immune by virtue of section 86 of the State Sector Act 1988). Ministers are clearly within the proposed Crown Civil Proceedings Bill’s definition of the Crown.71 However, there is an option about whether or not to include them within the Bill’s indemnity or immunity clause.
6.42At present, ministers are protected by an indemnity for legal costs or damages incurred in the course of legal proceedings brought against them in their capacity as ministers, through a process set out in the Cabinet Manual.72 There is no absolute right to indemnity by the Crown in respect of proceedings brought against a minister personally. The minister is required to approach the Prime Minister and Attorney-General, for determination of whether the minister has acted within the scope of his or her authority. The Attorney-General forms a view on this issue and submits a paper to Cabinet seeking a decision on whether or not to indemnify the minister’s expenses.

6.43Regardless of whether an immunity or indemnity approach is preferred for Crown employees, there may be arguments to distinguish or align the position for ministers. If an indemnity approach is favoured for Crown employees, for instance because it is considered important to be able to bring suits directly against the individual Crown employee concerned, the same may well be desired for ministers.

6.44Whichever approach is preferred, from one point of view it would be clear and logical to make provision for ministers as well as Crown employees in the same statutory provision, rather than leaving part of the process to the Cabinet Manual. In the case of an indemnity, the coverage would essentially be the same as under the Cabinet Manual, since those guidelines only provide for indemnification when a minister is acting in the course of his or her duties. It may be useful to have indemnification of ministers included in the proposed statutory indemnity scheme. However, it could instead be said that ministers, as political actors, should be in a different position to Crown employees and should not be protected by an automatic indemnity; it may be appropriate for a minister to justify why they ought to be indemnified in a particular case, where a similar obligation should not be put on a Crown employee.

Questions

Q6 Do you agree that the Crown proceedings legislation should clarify that a department must meet judgments for compensation from its own appropriation? Do you foresee any problems with this approach?
Q7 Do you think that the government should be required to disclose the amount of money spent on settlements made in contemplation of litigation?
Q8 Do you prefer the option of an immunity or an indemnity from legal suit for Crown employees?
Q9 Should ministers be in the same position as Crown employees with regard to an immunity or indemnity from legal suit?

71See cl 4.
72Cabinet Office Cabinet Manual 2008 at [4.34]–[4.57].