Report No. 01
38. Section 11(1).-
Section 11(1) of the Act provides that nothing in the Part I of the Act shall extinguish or abridge the prerogative and statutory powers of the Crown. Power is conferred on the Admiralty or the Secretary of State by sub¬section 2 of section 11 to issue a certificate to the effect that the act was properly done in the exercise of the prerogative of the Crown. But as regards statutory powers conferred on the Crown if the section is intended to save the Crown from all liability in respect of acts done either by it or its servants and agents, it goes too far.
Even statutory power may imply a duty towards particular individuals and not to the public generally. In such an event why the Crown should be immune altogether from liability for torts committed in the exercise of statutory powers by its servants and agents is rather difficult to see. Sub-sections (2) and (3) of section 2 are very restricted in their scope regarding the liability of the Crown for the breach of statutory duties or for the exercise of a statutory power.
A large field seems to have been excluded by virtue of the provision in section 11 of the Act. Section 11(1), however, refers to "powers conferred on the Crown" as distinguished from "functions conferred or imposed upon an officer of the Crown", which is dealt with in section 2 (3). The number of statutes which confers powers on the Crown as such (as distinguished from its officers) is very small. One learned author thinks that the reason for enacting section 11 is obscure and it seems to make little change in the law.