X v Lord Advocate [2025] UKSC 44

THE COURT ORDERED that no one shall publish or reveal the name or address of the Appellant who is the subject of these proceedings or publish or reveal any information which would be likely to lead to the identification of the Appellant in connection with these proceedings.[2025] UKSC 44JUDGMENT
Between
XAppellantbefore Lord Reed, President Lord Hodge, Deputy President Lord Briggs Lord Burrows Lady SimlerHearing JUDGMENT GIVEN ON 10 December 2025 Heard on 9 June 2025Appellant Kenny McBrearty KC Adam McKinlay (Instructed by Livingstone Brown (Glasgow City))Respondent The Solicitor General for Scotland, Ruth Charteris KCKay Springham KC Dominic Scullion (Instructed by Scottish Government Legal Directorate (Edinburgh))Date 2025-12-10
[1]Introduction The question posed by this appeal is whether the Crown is vicariously liable for delicts allegedly committed by a member of the Scottish judiciary. The pursuer (and appellant) complains about four incidents in 2018. It is alleged that the first three incidents were assaults and that the four taken together comprised harassment (under the Protection from Harassment Act 1997). The pursuer is a legal practitioner. There is an anonymity order which prevents her from being publicly identified.[2]At all material times, the judicial office-holder, John Brown, was a sheriff. After proceedings before a tribunal to consider fitness for office, constituted under section 21 of the Courts Reform (Scotland) Act 2014, he was removed as a sheriff by the First Minister on 7 June 2024. John Brown is the first defender. The other defender (and the respondent in this appeal) is the Lord Advocate, who is sued as representing the Scottish Ministers (ie the members of the Scottish Government).[3]The matters raised on this appeal rest on the assumption that the first defender is liable in delict as alleged. What is in issue is whether the Crown is vicariously liable to the pursuer for those delicts. The answer turns not only on the common law doctrine of vicarious liability but also on statutory interpretation and, in particular, on the correct interpretation of section 2(1)(a) of the Crown Proceedings Act 1947.[4]It is important to make clear that, although the allegations are assumed to be true for the purpose of deciding the points of law in issue, the first defender denies the allegations. What is being asked in this appeal is whether the pursuer’s case is relevant (ie is not bound to fail). The factual question whether the first defender committed the delicts has not been decided.[2]The alleged facts[5]On 18 May 2018 the pursuer was at court to conduct a case before the first defender. The case was unable to start due to technical difficulties with evidence. The pursuer later encountered the first defender at the reception area. She apologised for the technical difficulties. The first defender told her not to worry and placed his hand on her cheek without her consent.[6]On 5 July 2018 the pursuer was at court in the course of her work. The first defender directed his bar officer to tell the pursuer that he wanted to see her in chambers. The pursuer was led to the first defender’s chambers by the bar officer. The first defender told the pursuer to sit and the bar officer to leave. The first defender came from behind his desk and hugged the pursuer without her consent. He engaged her in conversation, using inappropriate phrases such as “your pretty face”. The pursuer considered she was unable to leave, given the status of the first defender and that the meeting was taking place in the secure area of the court building. The first defender again approached the pursuer and hugged her. He allowed his face to linger against her shoulder. He maintained the position until the pursuer indicated her desire to leave. She was distressed. The first defender indicated the pursuer would not be able to get out without a pass. He walked her down a corridor and opened a door which led towards a courtroom. As the pursuer passed through the door, the first defender patted her twice and firmly on the bottom. The pursuer ran towards the public area. The conduct described was without her consent.[7]On 19 July 2018 the pursuer boarded a train and took a seat. She was approached by the first defender. He said he had been looking for her. He sat on the adjacent seat and engaged her in conversation. As he did so, he put his left hand on the inner thigh of the pursuer’s right leg. The pursuer had to move her bag onto her lap in order to prevent the first defender from doing so. The first defender’s conduct was without her consent.[8]There is no dispute that, assuming those to be true facts, the first defender assaulted the pursuer and, in respect of each incident, is liable to her in delict.[9]The fourth incident follows the pursuer’s reporting of the first defender’s conduct to her superiors. She made a complaint to the Judicial Office on 7 August 2018. On 24 August 2018 the first defender made a FaceTime call to the pursuer’s iPhone. The pursuer did not answer the first defender’s call. She reasonably believed the first defender’s call to be in response to the complaint. A further complaint was made to the Judicial Office in response to this incident.[10]The pursuer alleges that, additionally to the three incidents taken individually, the four incidents, taken together, formed a course of conduct amounting to harassment, contrary to the Protection from Harassment Act 1997, thereby making the first defender liable in delict.[11]Assuming, therefore, that the first defender is liable in delict for assault in respect of the first three incidents and, taking all four incidents into account, for harassment, the question on this appeal is whether the Crown is vicariously liable to the pursuer for those delicts.[3]Some relevant statutory provisions (1). The Crown Proceedings Act 1947[12]Prior to 1947, it had eventually come to be accepted in Scotland, as was long-established in the English law of tort, that the Crown could not be held liable in delict: Macgregor v Lord Advocate 1921 SC 847. One of the principal purposes of the Crown Proceedings Act 1947 (as amended) (“the 1947 Act”) was to remove that immunity in English and Scottish law. This was essentially achieved by section 2 (with section 43(b) dealing with the interpretation of “tort” in Scotland). So far as material, section 2 reads as follows: “2. Liability of the Crown in tort(1) Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject:- (a) in respect of torts committed by its servants or agents; (b) in respect of any breach of those duties which a person owes to his servants or agents at common law by reason of being their employer; and (c) in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property: Provided that no proceedings shall lie against the Crown by virtue of paragraph (a) of this subsection in respect of any act or omission of a servant or agent of the Crown unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant or agent or his estate.(2) Where the Crown is bound by a statutory duty which is binding also upon persons other than the Crown and its officers, then, subject to the provisions of this Act, the Crown shall, in respect of a failure to comply with that duty, be subject to all those liabilities in tort (if any) to which it would be so subject if it were a private person of full age and capacity. … (4) Any enactment which negatives or limits the amount of the liability of any Government department, part of the Scottish Administrationor officer of the Crown in respect of any tort committed by that department, part or officer shall, in the case of proceedings against the Crown under this section in respect of a tort committed by that department, partor officer, apply in relation to the Crown as it would have applied in relation to that department, part or officer if the proceedings against the Crown had been proceedings against that department, part or officer. (5) No proceedings shall lie against the Crown by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connection with the execution of judicial process. (6) No proceedings shall lie against the Crown by virtue of this section in respect of any act, neglect or default of any officer of the Crown, unless that officer has been directly or indirectly appointed by the Crown and was at the material time paid in respect of his duties as an officer of the Crown wholly out of the Consolidated Fund of the United Kingdom, moneys provided by Parliament, the Scottish Consolidated Fund or any other Fund certified by the Treasury for the purposes of this subsection or was at the material time holding an office in respect of which the Treasury certify that the holder thereof would normally be so paid.” (a) in respect of torts committed by its servants or agents; (b) in respect of any breach of those duties which a person owes to his servants or agents at common law by reason of being their employer; and (c) in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property:[13]Part V of the 1947 Act makes clear that it extends to Scotland subject to certain exclusions and modifications.

(b) , for the purposes of application to Scotland:

“the expression ‘tort’ means any wrongful or negligent act or omission giving rise to liability in reparation, and any reference to liability or right or action or proceedings in tort shall be construed accordingly…”
[14]Section 17 deals with who should be the parties to proceedings in England and Wales against (or by) the Crown. However, by reason of section 42, section 17 does not apply to Scotland, where the same matters were already dealt with by the Crown Suits (Scotland) Act 1857 (see para 17 below). Nevertheless, as will be explained (see paras 46-47 below), section 17 is relevant to the issues in the present case. It provides, so far as material:
“(1) The Minister for the Civil Service shall publish a list specifying the several Government departments which are authorised departments for the purposes of this Act, and the name and address for service of the person who is, or is acting for the purposes of this Act as, the solicitor for each such department, and may from time to time amend or vary the said list. … (3) Civil proceedings against the Crown shall be instituted against the appropriate authorised Government department, or, if none of the authorised Government departments is appropriate or the person instituting the proceedings has any reasonable doubt whether any and if so which of those departments is appropriate, against the Attorney General.”
[15]The interpretation section, section 38, includes the following:
“(2) In this Act, except in so far as the context otherwise requires or it is otherwise expressly provided, the following expressions have the meanings hereby respectively assigned to them, that is to say:- ‘Agent,’ when used in relation to the Crown, includes an independent contractor employed by the Crown; … ‘Officer,’ in relation to the Crown, includes any servant of His Majesty, and accordingly (but without prejudice to the generality of the foregoing provision) includes a Minister of the Crown and a member of the Scottish Government … (3) Any reference in this Act to His Majesty in His private capacity shall be construed as including a reference to His Majesty in right of His Duchy of Lancaster and to the Duke of Cornwall.”
[16]Section 40 headed “Savings” deals with matters that are not altered by the 1947 Act. Section 40(1), (2)(b) and (2)(c) read as follows: “(1) Nothing in this Act shall apply to proceedings by or against, or authorise proceedings in tort to be brought against, His Majesty in His private capacity. (2) Except as therein otherwise expressly provided, nothing in this Act shall: … (b) authorise proceedings to be taken against the Crown under or in accordance with this Act in respect of any alleged liability of the Crown arising otherwise than in respect of His Majesty's Government in the United Kingdom or the Scottish Administration, or affect proceedings against the Crown in respect of any such alleged liability as aforesaid; or (c) affect any proceedings by the Crown otherwise than in right of His Majesty’s Government in the United Kingdom or the Scottish Administration; …” (b) authorise proceedings to be taken against the Crown under or in accordance with this Act in respect of any alleged liability of the Crown arising otherwise than in respect of His Majesty's Government in the United Kingdom or the Scottish Administration, or affect proceedings against the Crown in respect of any such alleged liability as aforesaid; or (c) affect any proceedings by the Crown otherwise than in right of His Majesty’s Government in the United Kingdom or the Scottish Administration; …” (2). The Crown Suits (Scotland) Act 1857[17]As has been mentioned in para 14 above, section 17 of the 1947 Act does not apply to Scotland. In Scotland, the practice of suing the Crown, as represented by Officers of State, first received statutory recognition in the Crown Proceedings Act 1600 (Acts of the Old Scottish Parliament, 1600 c 23). Over time, the Lord Advocate came to be recognised as the representative of the Crown in litigation. That process was completed by the Crown Suits (Scotland) Act 1857 (20 and 21 Vict, c 44). Sections 1 and 4A of that Act (as amended) provide that the Crown may sue and be sued in the name of the Lord Advocate (where the claim is on behalf of, or against, any part of the Scottish Administration) or the Advocate General for Scotland (in any other case). Those sections read as follows: “1. Crown suits, &c may be brought in name of the Lord Advocate Every action, suit, or proceeding to be instituted in Scotland on the behalf of or against [His] Majesty, or in the interest of the Crown (including the Scottish Administration), or on the behalf of or against any public department, may be lawfully raised in the name and at the instance of or directed against the appropriate Law Officer as acting under this Act. 4A. Meaning of ‘the appropriate Law Officer’ In this Act ‘the appropriate Law Officer’ means -(a) the Lord Advocate, where the action, suit or proceeding is on behalf of or against any part of the Scottish Administration, and(b) the Advocate General for Scotland, in any other case.” (a) the Lord Advocate, where the action, suit or proceeding is on behalf of or against any part of the Scottish Administration, and (b) the Advocate General for Scotland, in any other case.” (3). The Scotland Act 1998[18]The expression “the Scottish Administration” is defined by section 126(6) of the Scotland Act 1998 (“the 1998 Act”), for the purposes of that and any other enactment, as meaning the office-holders in the Scottish Administration and the members of staff of the Scottish Administration. The former category, as defined by section 126(7)(a) and (8), comprises the members of the Scottish Government and junior Scottish Ministers, together with the holders of offices in the Scottish Administration which are not ministerial offices (the Registrar General of Births, Deaths and Marriages for Scotland, the Keeper of the Registers of Scotland and the Keeper of the Records of Scotland, together with any other offices specified by Order in Council). The expression “the Scottish Government” is defined by section 44(1) as referring specifically to the First Minister, Ministers appointed under section 47 of that Act, the Lord Advocate and the Solicitor General for Scotland. The members of the Scottish Government are referred to collectively as “the Scottish Ministers”: section 44(2).[19]Section 99 of the 1998 Act deals with the rights and liabilities of the Crown in different capacities. It distinguishes, in section 99(1), between “the Crown in right of His Majesty’s Government in the United Kingdom” and “the Crown in right of the Scottish Administration”. These are described in section 99(2) and (3) as different capacities of the Crown. This usage is of long standing (see, for example, Calvin’s Case (1608) 7 Co Rep 1, 10; 77 ER 377, 389) and is familiar in other contexts. A solicitor, for example, may act in his private capacity, or in his capacity as the executor of a client’s estate, or in his capacity as a trustee of a trust.[20]It is to be noted that the phrase “the Crown …in right of His Majesty’s Government in the United Kingdom” also appears in section 40(2)(c) of the 1947 Act, which was amended by Schedule 8 to the Scotland Act so as to insert the words “or the Scottish Administration” (see para 16 above). Similarly, section 40(2)(b) refers to liabilities arising “in respect of His Majesty’s Government in the United Kingdom or the Scottish Administration” (see para 16 above). Schedule 8 (as amended by section 12(2)(a) of the Scotland Act 2012) also amended the definition of “officer” in section 38 of the 1947 Act so as to add the words “and a member of the Scottish Government” (see para 15 above); and it amended section 1 of the Crown Suits Act 1857 so as to insert “(including the Scottish Administration)” (see para 17 above).[4]The law on vicarious liability[21]The law on vicarious liability is essentially a common law (ie judge-made) doctrine. The scope of vicarious liability has expanded in modern times, primarily to deal appropriately with the many claims for the sexual abuse of children but also to reflect changes in the patterns of work relationships. The modern English law was set out by the Supreme Court in BXB v Trustees of the Barry Congregation of Jehovah's Witnesses [2023] UKSC 15; [2024] AC 567. It is common ground that the same law applies in Scotland. Three points of relevance to this appeal were made clear in that judgment.(i) There are two stages to consider in determining vicarious liability. Stage 1 is concerned with the relationship between the defender and the wrongdoer. Stage 2 is concerned with the link between the commission of the delict and that relationship. Both stages must be addressed and satisfied if vicarious liability is to be established.(ii) The test at stage 1 is whether the relationship between the defender and the wrongdoer was one of employment or akin to employment. In most cases, there will be no difficulty in applying this test because one is dealing with an employer-employee relationship. But in applying the “akin to employment” aspect of this test, a court needs to consider carefully features of the relationship that are similar to, or different from, a contract of employment.(iii) The test at stage 2 (the “close connection” test) is whether the wrongful conduct was so closely connected with acts that the wrongdoer was authorised to do that it can fairly and properly be regarded as done by the wrongdoer while acting in the course of the wrongdoer’s employment or quasi-employment. The reference to quasi-employment is necessary so as to embrace where the relationship at stage 1 is “akin to employment”.[5]The law on statutory interpretation[22]It is well-settled that the modern approach to statutory interpretation is to ascertain the meaning of the words used, in the light of their context and the purpose of the provision: R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [2022] UKSC 3; [2023] AC 255, paras 28-29; News Corp UK & Ireland Ltd v Revenue and Customs Comrs [2023] UKSC 7; [2024] AC 89 (“News Corp”), para 27; R (N3) v Secretary of State for the Home Department [2025] UKSC 6; [2025] 2 WLR 386, para 62; Darwall v Dartmoor National Park Authority [2025] UKSC 20; [2025] AC 1292, para 15.[23]Also of potential relevance in this case is the principle that a statute is “always speaking”. As understood in the modern context, what this means is that, in general and subject to the statutory words not permitting this, the words should be interpreted in the light of changes that have occurred since the statute was enacted. Those changes may include, for example, technological developments, changes in scientific understanding, changes in social attitudes and – of importance in this case – changes in the law. The always speaking principle was explored in some depth by the Supreme Court in News Corp (particularly at paras 28-37), albeit that it was there held that, having regard to the constraints of EU law, the always speaking principle could not be applied so as to interpret “newspapers” as covering digital editions.[6]The decisions in the lower courts (1). The Outer House of the Court of Session[24]In the Outer House, Lord Clark decided that, leaving aside any time bar, the claim by the pursuer against the Crown for vicarious liability was relevant (ie not bound to fail) in respect of the first two alleged incidents: X v Y [2023] CSOH 17; 2023 SC 235. His reasoning was as follows.(i) A judicial office-holder, such as a sheriff, is a “Crown servant” within section 2(1)(a) of the 1947 Act; and the relationship with the Crown is akin to one of employment. The key features of Crown and government involvement in the appointment of sheriffs (by the monarch, on the recommendation of the First Minister), their removal from office (which is the responsibility of the First Minister), and the payment of their salaries (which is the responsibility of the Scottish Ministers) meet this part of the test. The independence of the judiciary does not negate the relationship being akin to that of an employer and an employee. There would be no need for section 2(5), excluding vicarious liability where responsibilities of a judicial nature are being discharged, if sheriffs were not Crown servants and if there were not situations where the Crown is vicariously liable for the conduct of a sheriff. Stage 1 of vicarious liability was therefore made out.(ii) At the second stage of the vicarious liability enquiry, the pursuer was not bound to fail in respect of the first two incidents. In contrast, the other two incidents were not sufficiently closely connected with the first defender’s position as a sheriff and were properly viewed as personal matters. Lord Clark said, at para 41, “The sheriff was not in some way entrusted by the Crown to behave in a particular manner on the train or in a video call.”[25]However, Lord Clark went on to decide that the claims for vicarious liability in respect of the assaults (but not harassment) were time-barred, as they had been brought more than three years after the dates on which the alleged delicts took place, and therefore after the expiry of the time limit specified by section 17 of the Prescription and Limitation (Scotland) Act 1973. He also decided, after examining the Crown Suits (Scotland) Act 1857, that the appropriate Law Officer to be sued was the Lord Advocate (not the Advocate General for Scotland who had also been sued by the pursuer) because the relevant manifestation of “the Crown” here was the Scottish Administration (or a part of the Scottish Administration), not the UK Government. That was because the Scottish Ministers paid the salaries of judicial office-holders, the First Minister recommended who was to be appointed, and he or she was also the person responsible for the removal of a sheriff from office. (2). The Inner House of the Court of Session[26]The Lord Advocate brought a reclaiming motion (ie appealed) on the vicarious liability issue and the pursuer appealed on the time-bar issue. The judgment of the Inner House (Lord Doherty, Lord Boyd of Duncansby and Lady Wise) was given by Lord Doherty: X v Brown [2024] CSIH 6; 2024 SC 309. The Inner House allowed the Lord Advocate’s appeal on vicarious liability. The pursuer’s appeal on the time-bar issue therefore fell away although Lord Doherty said that, had it not been contingent on the pursuer succeeding on the appeal on vicarious liability, the Inner House would have allowed her appeal on that issue.[27]The Inner House’s reasoning on vicarious liability was as follows.(i) Lord Clark had decided, and there was no appeal against this aspect of his decision, that the appropriate law officer was the Lord Advocate as representing the Scottish Administration (or a part of the Scottish Administration). That was because the relevant liability of the Crown was the vicarious liability of the Scottish Government (which formed part of the Scottish Administration). Therefore, the issue at stage 1 of the vicarious liability enquiry was whether Scottish judicial office-holders are akin to employees of the Scottish Government. Judicial office-holders are not Crown servants and, contrary to Lord Clark’s reasoning, section 2(5) of the 1947 Act does not dictate that they are. Nor are they true independent contractors. Rather they are officers of the Crown.(ii) The relationship between the Scottish judiciary and the Scottish Government is not akin to employment. This is essentially for two reasons. First, the Scottish Government does not have control over the performance of the judiciary, whether individually or as an institution. Secondly, as a matter of constitutional principle, the judiciary is independent of Government. To treat a Scottish judicial office-holder as akin to an employee of the Scottish Government would undermine that constitutional principle. These two reasons outweigh the principal factor going the other way which is that the Scottish Government would have the deeper pockets so that finding vicarious liability obviated the risk that pursuers might not recover full damages from the wrongdoer. Lord Doherty summarised the Inner House’s conclusion at para 45: “The lack of control by the Scottish Government and the importance of maintaining judicial independence (both actual and perceived) are cogent factors which weigh heavily against judicial office-holders being akin to employees. In our view these factors are not outweighed by the factors which it is suggested point the other way.”(iii) Although unnecessary to decide this, given the decision on stage 1, the Inner House would have agreed with what Lord Clark decided at stage 2 in respect of the first two alleged incidents. But the Inner House would have concluded that the pursuer was not bound to fail to satisfy the close connection test in respect of the third and fourth alleged incidents. Rather the application of that test in respect of the third and fourth alleged incidents would have been better considered once the evidence had been heard.[28]The pursuer now appeals to the Supreme Court against the decision of the Inner House that, at stage 1 of the enquiry, the claim that the Crown is vicariously liable for the first defender’s alleged delicts is bound to fail.[7]What is the correct interpretation of section 2(1)(a) of the 1947 Act? (1). The primary submission on behalf of the pursuer[29]The correct interpretation of section 2(1)(a) of the 1947 Act is the central issue on this appeal. Although it does not use the words “vicarious liability”, it is not in dispute that that subsection is concerned with the vicarious liability of the Crown in respect of a delict (or tort). It is also not in dispute, as set out at para 21 above, that the modern law of vicarious liability in delict has developed so that it extends beyond delicts committed by servants (or agents) to include delicts committed by those who are in a relationship akin to employment.[30]The primary submission put forward by Kenny McBrearty KC on behalf of the pursuer (which ironically, at first sight, appears to be contrary to a wide approach to vicarious liability) is that, on a correct interpretation of section 2(1)(a) of the 1947 Act, the development in the law of vicarious liability to include relationships akin to employment is irrelevant. Rather the class of persons in respect of whose delicts the Crown is liable is defined entirely within the statute. Section 2(1)(a) does not import developments in the common law but rather, on its express wording, applies the Crown’s vicarious liability only to delicts committed by the Crown’s servants (and agents). Put another way, if a judicial office-holder is a Crown servant, section 2(1)(a) automatically means that stage 1 of the vicarious liability enquiry is satisfied even though, at common law, that relationship is neither one of employment nor akin to employment. On the facts of this case, therefore, the crucial question is whether a Scottish judicial office-holder is a servant of the Crown (it not being suggested that there is any relevant principal-agent relationship).[31]It is then argued on behalf of the pursuer that a (Scottish) judicial office-holder is a servant of the Crown. For that argument, Mr McBrearty draws support, for example, from the tendency of the 1947 Act to elide “officer” and “servant” (as in section 38(2)); from academic commentaries (such as Glanville Williams, Crown Proceedings (1948) pp 30-31) indicating that for practical purposes “officer” and “servant” are co-extensive in the 1947 Act; and from the dissenting judgment of Lord Diplock in the Privy Council case of Ranaweera v Ramachandran [1970] AC 962. Lord Diplock’s judgment is, so it is submitted, supportive of the pursuer’s argument because it indicates that a Crown servant carries out the functions of the Crown (ie the functions of government), including a judicial function, even though the Crown servant may be independent from, and not under the control of, the Crown in so doing. (2). What is meant by the Crown in the context of this case?[32]In considering the primary submission of Mr McBrearty, it is first necessary to clarify what is meant by the Crown in the context of vicarious liability in delict under the 1947 Act. This is a difficult question.[33]Reference was made in the submissions of both counsel to the speech of Lord Diplock in the case of Town Investments Ltd v Department of the Environment [1978] AC 359, 381, where it was said that: “Where, as in the instant case, we are concerned with the legal nature of the exercise of executive powers of government, I believe that some of the more Athanasian-like features of the debate in your Lordships’ House could have been eliminated if instead of speaking of ‘the Crown’ we were to speak of ‘the government’ – a term appropriate to embrace both collectively and individually all of the ministers of the Crown and parliamentary secretaries under whose direction the administrative work of government is carried on”.[34]As Sir William Wade commented (“The Crown, Ministers and Officials: Legal Status and Liability”, in The Nature of the Crown,(1999), M Sunkin and S Payne,eds, p 23) (“Wade’s essay”), this dictum needs to be handled with care. Lord Diplock was speaking there in a different context from the present case. The question before the House of Lords was whether legislation imposing rent controls applied to a lease entered into by the minister of the Crown responsible for acquiring accommodation for government departments. The issue raised was therefore the scope of the common law rule that the Crown is not bound by statutes in the absence of express words or necessary implication, a rule which is unaffected by the 1947 Act: see section 40(2)(f). That rule has long been understood to confer an immunity on servants of the Crown as well as on the Crown itself: see, for example, Cooper v Hawkins [1904] 2 KB 164, where an employee of the War Office was acquitted of breaking the speed limit (of three miles per hour) on the basis that the statute in question did not bind the Crown.[35]A number of other points can be made about Lord Diplock’s dictum. First, Lord Diplock was expressly seeking to modernise “the vocabulary used by lawyers in the field of public law”, and to depart from the tradition of speaking “as if Her Majesty, the Minister of Works and the Secretary of State for the Environment were all persons to whose relationships to one another and to third parties the ordinary principles and concepts of private law applied” (p 380). It by no means follows that the same approach should be applied when seeking to ascertain the meaning of a statute enacted in 1947. Indeed, section 2(1)(a) of the 1947 Act exemplifies the tradition which Lord Diplock criticised, in assimilating the liabilities of the Crown in tort in respect of the torts, for example, of ministers and departments, to those of a private person in respect of the torts of his or her servants and agents.[36]Secondly, Lord Diplock was concerned expressly with “the legal nature of the exercise of executive powers of government” (p 381). The powers derived from the Crown under the UK’s constitution are not confined to the executive powers of government, but also include legislative and judicial powers (as explained below at paras 43-45). It cannot therefore be taken for granted, as a starting point of the analysis, that section 2 of the 1947 Act is concerned only with the executive powers of government. That is particularly true in the context of the present case, where an assumption that “the Crown”, within the meaning of section 2 of the 1947 Act, is confined to the executive powers of government would beg a question in issue in the appeal.[37]Thirdly, the most controversial aspect of Lord Diplock’s dictum (see, for example, Wade’s essay), and the most difficult to reconcile with previous and subsequent authorities such as M v Home Office [1994] 1 AC 377,was his treatment of “the Crown” as embracing “both collectively and individually all of the ministers of the Crown and parliamentary secretaries”. Although that approach might be regarded as reflecting the breadth of the common law rule of Crown immunity from the application of statutes, it cannot be applied in the context of the law of the Crown’s liability in tort or delict. That is because the distinction between the legal personality, and amenability to tortious or delictual liability, of the Crown on the one hand, and of its officers and servants (such as its ministers) on the other, is of fundamental importance in that context. It has always been possible, both in Scotland and in England, for ministers and other servants of the Crown to be sued in respect of wrongs for which they are personally responsible, even if they have been discharging official responsibilities. They have never benefited from the common law immunity of the Crown from tortious or delictual liability. It was, indeed, the shortcomings of the Crown’s practice of supplying nominated defendants to be sued in lieu of the Crown itself, criticised by the House of Lords in Adams v Naylor [1946] AC 543, and illustrated soon afterwards by Royster v Cavey [1947] KB 204, that led to the enactment of the 1947 Act. As Lord Woolf explained in M v Home Office at p 415, to treat the wrongful act of a minister as being that of the Crown would be incorrect, as it would have the result that the minister could no longer be sued personally, as was possible before the enactment of the 1947 Act.[38]The distinction between the Crown and its officers or servants is preserved by the 1947 Act, as section 2 itself makes clear. It is also clear from section 2(4), set out at para 12 above, that government departments and parts of the Scottish Administration are, for the purposes of the 1947 Act, servants of the Crown, not the Crown itself. Section 38(2), set out at para 15 above, also makes it clear that a minister of the Crown is not the Crown but a servant of the Crown, and that the same is true of members of the Scottish Government.[39]Fourthly, the “Athanasian-like features” to which Lord Diplock referred, alluding to the Christian doctrine of the Trinity, are inescapable in the context of the 1947 Act. Like section 99 of the 1998 Act (see para 19 above), it recognises that the Crown acts in different capacities. Section 38(3) requires any reference in the Act to His Majesty in his private capacity to be construed as including a reference to His Majesty in right of the Duchy of Lancaster and to the Duke of Cornwall (see para 15 above), reflecting the position at common law: the Case of the Dutchy of Lancaster (1561) 1 Plow 212; 75 ER 325. Section 40(1), set out at para 16 above, recognises the distinction between the private and public capacities of the Sovereign, and excludes the possibility of proceedings in tort or delict being brought against His Majesty in his private capacity. Numerous other provisions distinguish between His Majesty in right of His Government in the United Kingdom and in other capacities: see, for example, section 38(2), in the definitions of “His Majesty’s aircraft” and “His Majesty’s ships”; and section 40(2)(b) and (c). The concluding words of section 40(2)(b) provide that Part III of the 1947 Act (concerned with judgments and execution) shall not apply to the Crown except in two of its capacities, namely in right of His Majesty’s Government in the United Kingdom or the Scottish Administration. Section 53(2) concerns the Crown in another capacity, namely in right of His Majesty’s Government in Northern Ireland. As we shall explain, the Crown acts in many other capacities.[40]Fifthly, Lord Diplock at p 384 described the Crown as a corporation sole, ie a legal entity with perpetual succession consisting of an office occupied by a single natural person who acts in right of that office. That characterisation of the Crown is supported by authority (see, for example, the Case of Sutton’s Hospital (1611) 10 Co Rep 23, 29; 77 ER 960, 968; Attorney General v Köhler (1861) 9 HL Cas 654, 671; 11 ER 885, 892) and by legislative usage (eg the Law of Property Act 1925, section 180(1), and the Administration of Estates Act 1925, section 3(5)), although it has been pointed out that there are respects in which the Crown differs from other corporations sole (In re Mason [1928] Ch 385, 402). The treatment of the Crown as a corporation is consistent with familiar aspects of the constitution, such as the continuity of the office of Sovereign upon the death of the natural person holding that office for the time being. It reflects a fundamental distinction between two capacities of the monarch, recognised as long ago as Willion v Berkley (1561) 1 Plow 223; 75 ER 339: as a private individual, and as the holder of a public office from which many important powers flow, including, but not restricted to, the executive powers of government. As Lord Simon of Glaisdale explained in Town Investments Ltd v Department of the Environment at pp 397-398: “‘Her Majesty’ in constitutional legal usage thus generally personifies the powers of ‘the Crown’ – powers the nucleus of which legally and historically are those of The Queen, but which by constitutional convention (ie, in political reality) are exercised in the name of The Queen by those who are nominally and legally her servants and agents”.[41]That description of the Crown, and the characterisation of it as a corporation sole, indicate that in some contexts, at least, the Crown simply means the Sovereign in his official capacity, as Sir William Wade maintained (Wade’s essay, p 24). That was the understanding of the 1947 Act put forward at the time of its enactment by commentators such as R M Bell in Crown Proceedings (1948), p 21, where he treated the expression “the Crown” as referring to the Sovereign in his or her public capacity, and by Sir Thomas Barnes, the Treasury Solicitor, in his article on “The Crown Proceedings Act 1947” (1948) 26 Canadian Bar Review 387, 389, where he similarly distinguished “between the King in his personal capacity and the Crown as the Head of the State”.[42]That “the Crown” should be understood in that sense in the context of the 1947 Act (ie as the Sovereign in his official capacity) is supported not only by the provisions of the Act itself, as explained in para 39 above, but also by section 30 of the Interpretation Act 1889 (52 & 53 Vict, c 63), which was in force at the time when the 1947 Act was enacted. Section 30 provided:
“In this Act and in every other Act, whether passed before or after the commencement of this Act, references to the Sovereign reigning at the time of the passing of the Act or to the Crown shall, unless the contrary intention appears, be construed as references to the Sovereign for the time being, and this Act shall be binding on the Crown.”
The effect of that provision was that, unless a contrary intention appeared (and there is none), references to the Crown in the 1947 Act were to be construed as referring to the Sovereign for the time being. The equivalent provision of the Interpretation Act 1978 is section 10, which omits the words “or to the Crown”:
“In any Act a reference to the Sovereign reigning at the time of the passing of the Act is to be construed, unless the contrary intention appears, as a reference to the Sovereign for the time being.”
But that omission does not undermine the important point that, at the time the 1947 Act was enacted, there was a statutory interpretation provision which laid down that, subject to contrary intention, the Crown was to be construed as meaning the Sovereign (for the time being).[43]However, if it is correct that the Crown is referring to the Sovereign acting in his official rather than personal capacity, one still has to recognise that the Sovereign’s official capacities are wide-ranging. It is at this point in the analysis that the parameters of the 1947 Act, as laid down in section 40(2)(b), are crucial. Section 40(2)(b) lays down that the liability of the Crown must arise in respect of His Majesty’s Government in the United Kingdom or the Scottish Administration. This is of critical importance because the Crown possesses functions and powers which do not concern His Majesty’s Government in the United Kingdom or the Scottish Administration.[44]Some powers and functions of the Crown fall outside those categories for territorial reasons. So, for example, the Crown could not be sued under the 1947 Act in respect of a nuisance allegedly arising out of the use of a military base in West Germany: Trawnik v Lennox [1985] 1 WLR 532. Other illustrations include R v Secretary of State for the Home Department, Ex p Bhurosah [1968] 1 QB 266, concerned with the Crown in right of Mauritius, Franklin v Attorney General [1974] QB 185 and Mutasa v Attorney General [1980] QB 114, concerned with Southern Rhodesia, R v Secretary of State for Foreign and Commonwealth Affairs, Ex p Indian Association of Alberta [1982] QB 892, where the relevant liabilities were held to be in respect of the Crown in right of Canada, and R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2005] UKHL 57; [2006] 1 AC 529, where it was held that the Secretary of State had acted on behalf of the Queen in right of South Georgia and the South Sandwich Islands. This territorial limitation was even more important in 1947, when the Sovereign was the head of an extensive empire owing a single allegiance.[45]Other powers and functions of the Crown fall outside those categories because, although they relate to the United Kingdom, they are not of an executive character (and hence do not arise “in respect of His Majesty’s Government in the United Kingdom or the Scottish Administration”). An example is the Crown’s function as a legislator: every Act of Parliament states that it was “enacted by the King’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and temporal, and Commons, in this present Parliament assembled”. Constitutionally, the Crown’s commission is also the source of all judicial authority, although the monarch cannot personally execute any judicial office: Prohibitions del Roy (1607) 12 Co Rep 63; 77 ER 1342. Section 40(1) and section 40(2)(b) reflect the constitutional role of the judiciary in relation to the monarch in his or her private capacity and as the head of the executive. As Lord Templeman explained in M v Home Office at p 395:
“The judiciary enforce the law against individuals, against institutions and against the executive. The judges cannot enforce the law against the Crown as monarch because the Crown as monarch can do no wrong but judges enforce the law against the Crown as executive and against the individuals who from time to time represent the Crown.”
[46]This limitation of the scope of the 1947 Act is also reflected in section 17, the material provisions of which were set out at para 14 above. As was explained there, section 17(1) requires the Minister for the Civil Service to publish a list specifying the government departments which are authorised departments for the purposes of the Act, and section 17(3) requires civil proceedings against the Crown to be instituted, in general, against the appropriate authorised government department. This provision has been of importance in determining the scope of the proceedings which are permitted by the 1947 Act, even in Scotland, in relation to which section 17 does not apply.[47]For example, in the case of British Medical Association v Greater Glasgow Health Board 1989 SC (HL) 65; [1989] AC 1211, where the question was whether proceedings against a health board established under national health service legislation constituted “proceedings against the Crown” within the meaning of section 21 of the 1947 Act, Lord Jauncey of Tullichettle said that “although this is a Scottish case, section 17(3) is important as showing the sort of proceedings which Parliament had in mind in section 21, namely proceedings against the appropriate government department or the Attorney General” (1989 SC (HL) 65, 94; [1989] AC 1211, 1226).[48]Accordingly, in essential agreement with the views of the lower courts on this issue – although it will be clear that we have regarded it as important to explore this issue in much greater depth than was possible in the lower courts – the vicarious liability imposed on the Crown, that is the Sovereign in his official capacity, by section 2(1)(a) of the 1947 Act is a liability arising in respect of the Government of the United Kingdom or the Scottish Administration. As we have explained at para 18, the Scottish Administration includes the Scottish Government but also includes other office-holders. Vicarious liability can therefore arise under the 1947 Act in respect of the acts or omissions of the Scottish Ministers (who form the Scottish Government), junior ministers (who do not form part of the Scottish Government, but are part of the Scottish Administration), and other office-holders, together with the staff of all of the foregoing.[49]In the present proceedings, the focus must be on the Scottish Administration, and more specifically on the Scottish Government, as a constituent part of the Scottish Administration. That is because it is the Scottish Government that has responsibility for the payment of the salaries of judicial office-holders and, through the First Minister, has responsibility for the appointment and removal of judicial office-holders. In other words, as regards the relationship with judicial office-holders, the Sovereign in his official capacity acts through the Scottish Government. We therefore consider that it is the relationship between the Scottish Government and judicial office-holders that needs to be focussed on in considering the vicarious liability of the Crown in this case.[50]It follows that we agree with the reasoning of Lord Clark in the Outer House (and, in any event, as we have said in para 27(i) above, his decision on this point was not appealed) that the appropriate person to be sued is the Lord Advocate, because the liability of the Crown here is said to arise in respect of the Scottish Administration, and specifically in respect of the Scottish Government which is part of the Scottish Administration. Lord Doherty’s judgment in the Inner House was also premised on that being correct (see para 27(i) above). Applying sections 1 and 4A of the Crown Suits (Scotland) Act 1857 (see para 17 above), the Lord Advocate is the appropriate law officer where the action is against any part of the Scottish Administration (while the Advocate General for Scotland is the appropriate law officer in any other case). (3). The correct interpretation of section 2(1)(a)[51]Returning to the primary submission advanced on behalf of the pursuer, while not necessarily disagreeing with what Mr McBrearty has argued on the meaning of “Crown servant”, we fundamentally disagree with his suggested interpretation of section 2(1)(a) (see para 30 above). On the correct interpretation, section 2(1)(a) is not self-contained. Rather the common law, and hence the modern development in the common law, of vicarious liability is relevant and important. Mr McBrearty’s interpretation, with his focus on the meaning of “Crown servant”, is therefore flawed and his further arguments built on it rest on an unsafe foundation.[52]Although not entirely straightforward, the correct interpretation of section 2(1)(a) can best be explained as follows. The words of the various sub-sections of section 2(1) are pitched at a general level with the objective purpose being to capture the main types of liability for which the Crown could be liable in tort or, by virtue of section 43(b), in delict. Those types of liability are: vicarious liability in respect of delicts (or torts) committed by the Crown’s servants or agents (section 2(1)(a) and the proviso); employers’ liability (section 2(1)(b)); and liability arising out of the ownership, occupation, possession or control of property (section 2(1)(c)). We put to one side liability for independent contractors (no-one is suggesting that judges are independent contractors) which, it would appear, may also fall within section 2(1)(a). Section 2(2) also imposes liability on the Crown for breach of statutory duty. For each of these areas of liability in delict (or tort), sections 2(1) and (2) of the 1947 Act put the Crown in the same position as “if it were a private person of full age and capacity”. Put another way, sections 2(1) and 2(2) have the purpose of imposing on the Crown the main areas in which liability in delict (or tort) could be imposed. As Glanville Williams wrote in Crown Proceedings, p 28, “There is no section of the Act stating generally that the Crown shall be liable in tort. Instead, the general principle is left, but very wide exceptions are carved out of it.”[53]Focusing on section 2(1)(a), therefore, the words effect the purpose of imposing on the Crown the law on vicarious liability in delict or tort. The purpose is not, as the pursuer submits, to impose on the Crown only a limited part of that law and nor is it to deem aspects of that law (ie the first stage of vicarious liability) as being automatically satisfied where the wrongdoer is a Crown servant.[54]It follows from this correct interpretation that all the law on vicarious liability, that would apply if the Crown were a private person, applies to the Crown; and that includes the development of the common law at stage 1 to embrace a relationship that is akin to employment. That one should include that development is supported by the principle of statutory interpretation that a statute is “always speaking” (see para 23 above). In so far as the words permit it, an interpretation that embraces developments in the common law is in general to be preferred to one that excludes such a development by treating the interpretation of the statute as frozen in time.[55]Two final, if minor, points on section 2 of the 1947 Act should be mentioned for completeness. The first is that the purpose of the proviso to section 2(1)(a) is not immediately obvious. Both R M Bell, Crown Proceedings, pp 30-31, and Glanville Williams, Crown Proceedings, p 44, suggest that the proviso was inserted out of an abundance of caution in order to make it plain that the Crown was to benefit where the defence of act of state was available to its servant, although it was strictly unnecessary, since where the defence of act of state was available, it would follow that no tort had been committed. Williams also suggests at pp 43-45 that an illustration of where the proviso might have applied was where a husband, while driving for his Crown employer, injured his wife. In that situation, the husband may be said to have committed a tort but, applying the law as it then was (it has since been reformed by the Law Reform (Husband and Wife) Act 1962), the wife could not sue him. It is hard to see in the modern law how one could have a tort committed by a servant or agent (which is now accepted to be a pre-requisite for vicarious liability) without there being “a cause of action in tort against that servant or agent or his estate”.[56]The second additional point is that section 2(5) makes clear that the Crown will not be liable for what a person does or does not do while discharging responsibilities of a judicial nature or in the execution of judicial process. It is not in dispute in this case that what the sheriff is said to have done fell outside that exemption. But that would not mean that there was no room for vicarious liability to apply in respect of a sheriff’s conduct (if, contrary to our reasoning, the stage 1 test was satisfied) when, as with the four incidents in this case, the sheriff was not discharging responsibilities of a judicial nature or in the execution of judicial process. This is because, even though a sheriff’s conduct did not fall within that exemption, the close connection test at stage 2 of the vicarious liability enquiry might still be satisfied. A further footnote observation on section 2(5) is that, in our view, because it is a non-sequitur, the Inner House was correct to reject the reasoning of Lord Clark (see paras 24(i) and 27(i) above) that section 2(5) dictates that a judicial office-holder must be a servant of the Crown so that there is a relevant relationship with the Crown for the purposes of stage 1 of the vicarious liability enquiry. The fact that section 2(5) clearly excludes liability on the part of the Crown for anything done by a person discharging or purporting to discharge responsibilities of a judicial nature does not entail that vicarious liability would otherwise exist. Rather, the provision can be understood as reflecting the fact that since the Crown cannot interfere in the manner in which judicial functions are exercised, it cannot be vicariously liable for those acts. Furthermore, as Lord Doherty explained, section 2(5) extends to a range of persons who are not judicial office-holders, and may clearly be employees of the Crown, but whose functions may require them to discharge responsibilities of a judicial nature or in connection with the execution of judicial process.[8]Applying the correct interpretation: is the relationship here akin to employment?[57]Having explained the correct interpretation of section 2(1)(a), including what we consider is meant by the Crown in this context, we must now apply that interpretation by asking whether, at stage 1 of the vicarious liability enquiry, the relationship between the Scottish Government, as part of the Scottish Administration, and a sheriff is akin to employment. It is common ground that, as with any judicial office-holder, a sheriff is not an employee and does not have a contract of employment. But importing the common law on vicarious liability, by asking whether “a private person of full age and capacity” would be vicariously liable for the sheriff’s delicts, the crucial question is whether the relationship between the Scottish Government and the sheriff is akin to employment. This was Mr McBrearty’s fall-back submission. If wrong on his primary submission (which we have explained and rejected at paras 30-56 above), he submits in the alternative that the relationship between the Crown and a sheriff is akin to employment.[58]That alternative submission also fails. There are two compelling and linked reasons why the relationship between a sheriff and the Scottish Government is not akin to employment.[59]First, there is no control by the Scottish Government over the performance by sheriffs of their judicial functions. The judiciary itself determines listing matters (ie where and when a sheriff sits and which cases he or she hears). At the extreme, there is a statutory procedure, laid down in sections 21-25 of the Courts Reform (Scotland) Act 2014, for the removal from office of a sheriff by the order of the First Minister as being unfit for office. But that requires a report from a specially convened tribunal recommending removal from office, and the order is subject to the negative procedure before the Scottish Parliament.[60]Secondly, and most crucially, it is a constitutional principle, resting on the separation of powers, that the judiciary is independent of government. A sheriff must be free to decide a case without any interference or the fear of interference by the Scottish Government. That includes deciding cases where the Scottish Government, represented by the appropriate Law Officer (or the Scottish Ministers, sued as such), is one of the parties. The principle of judicial independence is enshrined, for Scotland as well as for England and Wales, in section 3 of the Constitutional Reform Act 2005. By section 3(1):
“The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary.”
The same applies specifically to Scotland by reason of section 1 of the Judiciary and Courts (Scotland) Act 2008:
“The following persons must uphold the continued independence of the judiciary— (a) the First Minister, (b) the Lord Advocate, (c) the Scottish Ministers, (d) members of the Scottish Parliament, and (e) all other persons with responsibility for matters relating to— (i) the judiciary, or (ii) the administration of justice, where that responsibility is to be discharged only in or as regards Scotland.”
Accordingly, the Scottish Government can tell a sheriff neither what to do nor how to do it.[61]Those two linked reasons make clear that the relationship between a sheriff and the Scottish Government is, in a fundamental sense, not akin to an employment relationship. That is the case even though the Scottish Government, through the Scottish Consolidated Fund, may be said to be the ultimate funder of sheriffs’ remuneration, allowances and pension benefits.[62]Although arising in a different context, there is support for that conclusion in Gilham v Ministry of Justice [2019] UKSC 44; [2019] 1 WLR 5905. In that case, the Supreme Court decided that a district judge was not a “worker” nor in Crown employment in relation to the protection of a “whistle-blower” given by Part IVA of the Employment Rights Act 1996. The definition of “worker” depended on whether the judge was working under a contract of employment or a contract to perform work or services other than to a client or customer. The Supreme Court decided that she was not. Lady Hale (with whom Lord Kerr, Lord Carnwath, Lady Arden and Sir Declan Morgan agreed) pointed to the difficulty the claimant had had in identifying her employer, which reflected the fragmentation of responsibility for the judiciary as between, for example, the Lord Chancellor and the Lord Chief Justice. She said at paras 19 and 20:
“This fragmentation of responsibility has both statutory and constitutional foundations and highlights how different is the position of a judge from that of a worker employed under a contract with a particular employer…. [R]elated to that, there is the constitutional context. Fundamental to the constitution of the United Kingdom is the separation of powers: the judiciary is a branch of government separate from and independent of both Parliament and the executive. While by itself this would not preclude the formation of a contract between a Minister of the Crown and a member of the judiciary, it is a factor which tells against the contention that either of them intended to enter into a contractual relationship.”
Although the question whether a person is a “worker” within the meaning of the Employment Rights Act 1996 is different from the question whether the stage 1 test of vicarious liability is met, as Lady Hale made clear in Various Claimants v Barclays Bank plc [2020] UKSC 13; [2020] AC 973, para 29, the constitutional context to which Lady Hale referred in Gilham v Ministry of Justice is important in both contexts.[63]We therefore agree with the Inner House, essentially for the reasons given by Lord Doherty, that the relationship between a sheriff and the Scottish Government is not akin to employment so that there can be no vicarious liability of the Crown at stage 1.

Conclusion

[64]For all these reasons, we would dismiss the appeal.

Cited in 5 later judgments