This is a single section from Chapter 11. 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 secondary legislation made under it, unless the application of a particular Act to the Crown would impair the efficient functioning of government. Mere convenience is an insufficient justification for not binding the Crown. Legislation that does not bind the Crown should not grant the Crown an unfair benefit or unexpectedly or adversely affect third parties.

Cabinet Office Circular CO (02) 4[1] 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 people; and
  • the financial costs of making the Crown subject to the Act.

The Public Finance Act 1989 contains provisions relating to the kinds of financial liabilities the Crown can incur. The Treasury has produced further guidance on the Public Finance Act 1989.[2]

[1] Cabinet Office Circular CO (02) 4: Acts Binding the Crown: Procedures for Cabinet Decision (2002).

[2] Treasury A Guide to the Public Finance Act (2005).

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