Crown proceedings, Crown immunity, and state immunity — suing the State
How the Crown can be sued in tort and contract under the Crown Proceedings Act 1947, the residual immunities, the position of the police and other emanations of the Crown, and the separate regime of state immunity for foreign sovereigns under the State Immunity Act 1978.
تعارف
Before 1947 the Crown enjoyed a broad immunity from civil suit at common law — the maxim 'the King can do no wrong' meant subjects could only proceed by petition of right. The Crown Proceedings Act 1947 effected a fundamental reform: the Crown can now be sued in tort and contract as if it were a private person of full age and capacity (s.1). The Act retains a small number of residual immunities (notably for the armed forces in certain circumstances) and special procedural rules apply (s.21: no injunctions or specific performance against the Crown, only declarations). The Crown is also subject to judicial review of executive action under CPR Part 54. Separately, the law of state immunity governs litigation against FOREIGN sovereigns in UK courts; the State Immunity Act 1978 codifies the restrictive doctrine (immunity from acts iure imperii — sovereign acts — but not from acts iure gestionis — commercial acts). Diplomatic immunity, governed by the Vienna Convention on Diplomatic Relations as enacted by the Diplomatic Privileges Act 1964, gives diplomats personal inviolability and immunity from civil and criminal jurisdiction. Recent cases including Benkharbouche [2017] UKSC 62 and Hicks v Secretary of State for Foreign and Commonwealth Affairs [2024] have refined the boundaries.
In Brief
The Crown Proceedings Act 1947 abolished the broad sovereign immunity from civil suit — the Crown can be sued in tort and contract like a private person, with limited residual immunities. Injunctions and specific performance against the Crown remain unavailable (s.21), but declarations and judicial review fill the gap. Foreign states have a separate restrictive immunity under the State Immunity Act 1978; diplomats have personal immunity under the Vienna Convention as enacted by the Diplomatic Privileges Act 1964.
بنیادی اصول
Crown Proceedings Act 1947 s.1 — the Crown (Government) can be sued in tort and contract as if a private person. The Treasury Solicitor or Government Legal Department typically handles defence.
No injunction against the Crown (Crown Proceedings Act 1947 s.21(1)) — only declarations. This is subject to the exception in M v Home Office [1994] 1 AC 377 (HL) where the court can grant injunctive relief against an individual minister in contempt of court.
Armed forces immunity (Crown Proceedings Act 1947 s.10, now repealed for incidents post-1987 by the Crown Proceedings (Armed Forces) Act 1987) — the historical immunity for in-service combat injuries was significantly narrowed but residual doctrines (combat immunity, Smith v MoD limits) remain.
Police are NOT the Crown — the Chief Constable is the proper defendant for tortious police conduct (Police Act 1996 s.88). Statutory vicarious liability applies for off-duty acts.
State immunity (State Immunity Act 1978) — foreign States are immune from UK proceedings except in specified exceptions (commercial transactions, employment contracts performed in UK, personal injury, ownership of UK property, ship in commercial use).
Diplomatic immunity (Diplomatic Privileges Act 1964 incorporating Vienna Convention 1961) — diplomatic agents have personal inviolability + immunity from criminal jurisdiction + immunity from civil jurisdiction except in narrow exceptions (real property held in personal capacity, succession, professional/commercial activity outside official functions).
Consular immunity (Consular Relations Act 1968 incorporating Vienna Convention 1963) — narrower than diplomatic immunity; consular officers immune only for acts performed in exercise of consular functions.
Sovereign acts immunity under common law — the Crown has prerogative powers (the residual non-statutory executive powers) which can be challenged by judicial review on conventional grounds (illegality, irrationality, procedural impropriety) and on the GCHQ [1985] basis.
اہم قوانین
Crown Proceedings Act 1947
Crown Proceedings (Armed Forces) Act 1987
State Immunity Act 1978
Diplomatic Privileges Act 1964
Consular Relations Act 1968
اہم مقدمات
M v Home Office
[1994] 1 AC 377 (HL)
Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs
[2017] UKSC 62
Smith v Ministry of Defence
[2013] UKSC 41
Council of Civil Service Unions v Minister for the Civil Service (GCHQ)
[1985] AC 374 (HL)
Frequently Asked Questions
Can I sue the UK Government for negligence?
Yes — under section 1 of the Crown Proceedings Act 1947, the Crown is liable in tort as if it were a private person of full age and capacity. The proper defendant is typically the relevant Government Department or the Attorney General for the Crown. Pre-action conduct and the standard civil procedure apply, with the Treasury Solicitor / Government Legal Department defending.
Can the court grant an injunction against a Government Minister?
Not directly against the Crown — section 21 of the 1947 Act prevents injunctions against the Crown. But in M v Home Office [1994] 1 AC 377 the House of Lords held that an injunction CAN be granted against an individual minister where the minister has personally been responsible for an act of contempt of court. In practice the Family Court has also developed mandatory injunctions against the Home Office in immigration removal cases.
Is the police force part of the Crown?
No. The Chief Constable (or Commissioner for London / Northern Ireland) is the proper defendant in negligence and other tortious claims (Police Act 1996 s.88). The police are not Crown servants; this matters because (a) Crown immunity does not apply, and (b) the Chief Constable is personally vicariously liable for officers' conduct on or off duty. Other public bodies (NHS Trusts, local authorities) likewise have their own legal personality.
When does state immunity apply?
Under the State Immunity Act 1978, foreign states are immune from UK proceedings unless an exception applies. Common exceptions are: (a) commercial transactions (s.3), (b) employment contracts where the work is wholly or partly performed in UK (s.4), (c) personal injury caused in the UK (s.5), (d) ownership or use of UK property (s.6), (e) ships used for commercial purposes (s.10). The Supreme Court in Benkharbouche [2017] held that the broad employment-immunity in s.16(1)(a) was incompatible with Article 6 ECHR and EU rights — that exclusion no longer prevents most domestic-staff employment claims.
Can a diplomat be prosecuted in the UK?
Not for most offences. Article 31 of the Vienna Convention on Diplomatic Relations 1961 (enacted by the Diplomatic Privileges Act 1964) gives diplomatic agents complete personal immunity from criminal jurisdiction. The sending State can waive immunity. The receiving State can declare the diplomat persona non grata (PNG) and require them to leave. Lesser staff have narrower immunity; consular officers under the Vienna Convention on Consular Relations 1963 have immunity only for official acts. In serious cases (e.g. Anne Sacoolas/Harry Dunn) PNG status and diplomatic negotiations are the practical route.
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