Contents

Chapter 6
Accountability of the Crown and its employees

Accountability of the government in general

6.2Compensation (or restitution of property) is an important goal of many civil proceedings against the Crown. Traditionally, actions against the Crown, and before the Crown against officers, have been used as a way of holding the Crown and its officers to account for their use of public powers. Many of the great constitutional cases in English legal history are in fact tort cases against officers, alleging that they have either exceeded or abused their powers.56 The Crown Proceedings Act 1950 promotes this sense of accountability in that it provides a clear route for taking legal action against the Crown. There are, however, two aspects of this accountability that can, in our view, be improved: first, relating to the source of the compensation, and second, relating to how information about settlements is provided.

Source of the compensation

6.3The 1950 Act provides that payment of judgments should be made effectively from the consolidated fund rather than from the particular department’s appropriation. The trouble with this is that if accountability, as well as compensation, is an important goal then it would make sense for the payment to come directly from the department that got things wrong. Moreover, the statute on the face of it creates the rather odd position that while settlements are presumably paid from appropriations, judgments do not need to be.

6.4Our understanding of the Government’s current practice is that if an individual department is unable to satisfy a judgment from its existing appropriations then it will apply for a supplementary appropriation to cover the debt. This has the benefit of triggering the internal public sector accountability process. Our Bill seeks to legislate in line with the current government practice. It makes it clear that it is the individual department that is responsible for meeting the cost of any judgment, not the consolidated fund as is the case under the present legislation. A potential objection, which we consider more theoretical than real, is that the absence of an appropriation might frustrate a claimant from getting judgment. The reality of modern government accounting practice makes this unlikely.

Information about settlementsTop

6.5Accountability could also be enhanced by providing a simplified process by which the public can learn of settlements made by the Crown in contemplation of litigation. Information about the claims that departments are settling, as well as the judgments that they are paying, is important for the public in assessing the number and seriousness of the cases that have been brought against particular departments.57 Some of this information is currently available, but it is difficult to access. Many departments have adopted a policy of considerable openness to providing this information on request.
6.6One suggested approach would be to adopt a procedure like that currently used in British Columbia, which requires the disclosure of settlements annually in one source in a document tabled in Parliament by the Attorney-General.58 This one document would give greater attention to what actions have been conducted against the Crown, and what, if anything, that might say about the performance of particular departments. We have, however, provided in our draft that such reporting should be made through the established reporting mechanisms of government departments.

6.7Any reporting would need to safeguard the legitimate privacy interests of those who have had disputes against the Crown. For instance, the public has no legitimate interest in the identity of a particular claimant for compensation resulting from sexual abuse by a Crown employee.

Proposals in the BillTop

6.8Our proposals in relation to the general accountability of the government are found in clause 21 of the draft Crown Civil Proceedings Bill.

56For example Entick v Carrington (1765) 2 Wils KB 275, 95 ER 807; and Ashby v White (1703) 2 Ld Raym 938, 92 ER 126.
57See Geoff McLay “Tort, Settlements and Government: A Preliminary Inquiry” (2011) 9 NZJPIL 247.
58Crown Proceedings Act RSBC 1996 c 89, s 15.