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Restraining the State through Tort? The Crown Proceedings Act in Retrospect
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Professor TT Arvind Thiruvallore Thattai
Arvind, T.T., Steele, J.
Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change
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Recent years have seen academics, judges and the Law Commission re-examine the desirability of making public authorities liable in tort. Little or no reference has been made to the fact that much of this liability is the result of deliberate parliamentary action through the Crown Proceedings Act 1947. Although this Act did not create the idea of public authority liability, it significantly extended it. What, then, were the considerations and imperatives of principle or policy that produced this statute? And what has changed so significantly in the last sixty years that the work it does no longer seems desirable? These are the questions this paper sets out to examine, through a study of the genesis of the 1947 Act. As I show, nothing about the road leading to the Act was straightforward. A Committee was set up to decide if the State ought to be made liable in tort, but it drafted the Bill without deciding this question. The Bill was seen as being a matter of pressing urgency in 1921, when the process of drafting it began, but its passage took over 25 years despite constant pressure on the government from well-connected groups. The legal profession strongly supported Crown liability, yet the persons responsible for the long delay included leading lawyers and judges. Powerful government departments were implacably opposed to being made monetarily liable in tort and many of the Act’s proponents outside government saw it as a check on civil servants. Yet senior civil servants were the driving forces behind the preparation of the Bill. In the background to all of this lay profound changes in the nature of British governance and politics, including the rise of the administrative state and the Labour Party, and a range of factors – pragmatism, politics, and arguments of high constitutional principle – that influenced both sides of the debate. The result was a legislative proposal and final Act that meant different things to different people, including many who were closely associated with its production and progress to enactment. As I demonstrate in this paper, a closer study of the history of the Act raises fundamental questions about the proper role of tort law vis-a-vis public bodies – questions to which the answer in the modern debate tends to be assumed rather than investigated.
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