This is a single section from Chapter 10. Read the full chapter here.

Do compelling reasons exist to justify not binding the Crown?

Legislation should apply to the Crown unless there are good reasons for it not to do so.

 

The starting point is that the Crown should be bound by an Act, and delegated legislation made under it, unless the application of a particular Act to the Crown would impair the efficient functioning of government. Legislation that does not bind the Crown should not grant the Crown an unfair benefit or unexpectedly or adversely affect third parties.

Cabinet circular CO(02)4 identifies the following factors to take into account when assessing whether or not it is appropriate to bind the Crown:

  

  • whether any operations or activities relating to the special functions of the Government would be hindered by making the Crown subject to the Act (such activities may be differentiated from those in which the Government operates in the same way as a private person);
  • whether applying the Act to the Crown would, in light of the special role of the Crown, create any burden on the Crown over and above those on private persons;
  • the financial costs of making the Crown subject to the Act.

 

The Public Finance Act 1989 contains provisions relating to the kind of financial liabilities the Crown can incur. The Treasury has produced further guidance on the Public Finance Act.

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