Commentary on Sections Section 11: Application to Crown bodies
43.The general presumption is that legislation does not apply to the Crown unless this is explicitly the case. Section 11(1) confirms the Act’s application to the Crown and provides that the immunity that generally prohibits the prosecution of the Crown does not apply for the purposes of the new offence. Taken together, this provision and section 1 mean that Crown bodies that are either bodies corporate or are listed in Schedule 1 to the Act are subject to the new offence.
44.The liability of the Crown in the law of negligence is governed by the Crown Proceedings Act 1947. This makes the Crown liable as an employer or occupier and also vicariously liable for the torts of its servants and agents. The new offence is, however, predicated on an organisation owing a personal duty of care to the victim. Section 11(2) bridges this difference by requiring Crown bodies to be treated as owing, for the purposes of the offence, the duties of care that they would owe if they were ordinarily constituted corporate bodies independent of the Crown.
45.Section 11(3) and (4) addresses the fact that many of the activities and functions carried out by government departments and other Crown bodies are in law performed by the Crown rather than that body. For example, civil servants in government departments are employed by the Crown rather than the department for which they work. If provision were not made to deal with this, it might mean that the new offence did not work properly in its application to Crown bodies: conduct relevant to the offence might legally be attributable to the Crown rather than the body concerned and the employer’s duty of care might technically be considered to be owed by the Crown rather than by the relevant department. These provisions ensure that the activities and functions of government departments and other Crown bodies can properly be attributed to the relevant body. Section 11(5) ensure that the relevant parts of these provisions apply to Northern Ireland departments, which are corporate bodies and therefore, although Crown bodies, do not need to be listed in Schedule 1 for the offence to apply.