Crown immunity and health and safety

Crown immunity, under health and safety law, is a term that is known by many but understood by few.

It is often cited to PCS Safety Reps as a reason for inaction by management who wrongly believe that it means that they do not have to worry about health and safety law. 

We look here at precisely what 'Crown immunity' means. BUT this is only applicable in health and safety terms, as different exemptions may apply under other legislation.

Health and Safety Law

To properly understand Crown immunity, it is necessary to first understand the legal framework for health and safety. 

The law governing health and safety can be split into two - Statute Law and Common Law.

Statute law is concerned with regulations and Acts of Parliament. Common Law is based on the past decisions of judges - precedent - and the common law rule that everyone owes a duty to everyone else (the 'duty of care').

Criminal or civil liability?

If an employer fails to take reasonable care to protect an employee from a foreseeable injury, he or she could be found by the courts to have breached the 'duty of care'.

This is 'Civil Liability' and in such cases, damages can be awarded against the employer. There is no immunity for the Crown, and PCS takes many successful cases through their legal scheme against Government Departments and Agencies. 

Criminal liability arises mainly from statute law - though it also arises for the common law offences of murder and manslaughter.

Prosecution is in the criminal courts, in most cases are taken by either Health and Safety Executive Inspectors or local authority Environmental Health Officers and penalties on conviction can be a fine and/or imprisonment. 

It is quite possible for an employer to be sued, under common law, by an injured employee for damages and to be prosecuted under criminal liability for breaching statute law.

Crown Immunity from Criminal Liability

Action in the criminal courts is taken 'on behalf of the Crown'. Statute law is approved by the Crown (Royal Assent).

It would, it is said, be strange for the Crown to prosecute itself and this is the basis for the Crown being 'immune' from prosecution for criminal liability. 

The Crown is not, however, 'immune' from the requirements of health and safety legislation generally. All of these duties are placed on the Crown just as on any other employer. The only difference is what action can be taken under criminal law if the Crown fails in its duties.

What is meant by 'the Crown'?

With the on-going changes to the Civil Service, it is increasingly difficult to come to a strict definition of what is meant by 'the Crown'.

The HSE will look at each particular case as it arises before finally deciding whether the employer is covered by Crown Immunity. 

Whilst it is fair to assume that all core Departments within the Civil Service will enjoy Crown Immunity, it is possible that some Agencies will no longer be protected in this way.

Campaigning for change

PCS is opposed to crown immunity - we believe that it is fundamentally responsible for many of the shortcomings in current health and safety arrangements in government departments and agencies.

After years of quiet campaigning, we saw a first success in 2000, when the government's Revitalising Health and Safety strategy document committed them, for the first time, to the abolition of Crown Immunity for health and safety offences.

Since then, we have been pressing for the earliest possible legislation on this. To date, we are stil lwaiting, though now others, such the Centre for Corporate Accountability, are beginning to take an interest in the issue. 

Updated 26 Jan 2017

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