Nothing fosters discipline quite as much as individual accountability. It is understandable, therefore, that the Law Commission should look askance at the Government's plan to give negligent public servants immunity from civil lawsuits. It would mean, it says, that teacher unions could not sue the Ministry of Education over the Novopay failures. Or, in the episode which opened this Pandora's box, that Susan Couch, the survivor of the Panmure RSA triple murder, would have been banned from suing the Probation Service.
Until this case, it was taken for granted that public servants could be sued, but under an indemnity their department had to pay if they were found to have been negligent. Ms Couch received an out-of-court settlement of $300,000 last year after many court cases and finally getting the Supreme Court's go-ahead to sue. The effect of this ruling was that public servants had neither immunity from lawsuits nor an indemnity. The Government's response, included in the 2012 State Sector and Public Finance Reform Bill and based on the advice of the State Services Commission, is to put public servants beyond the reach of the ordinary civil law that applies to everybody else.
The Law Commission believes, with considerable justification, that this is wrong. Its president, Justice Sir Grant Hammond, told a parliamentary select committee that the right course would be to overturn the Supreme Court decision and return the law to what everybody thought it was before - an indemnity, not an immunity, for public servants. The Cabinet paper backgrounding the planned law had, he said, presupposed that if officials were grossly negligent, they should never be named as a party or challenged in a lawsuit. Ms Couch's case would, therefore, never have got off the ground. "The lawsuit couldn't be filed because the immunity stops you dead," he said.
Nobody wants to see public servants harshly treated when they have been pursuing their duties in good faith. Nor do they want to see them the subject of excessive litigation, much of which has no merit. Unfortunately, the Supreme Court ruling opened up that prospect on the basis that if public servants really were immune, the Crown, itself, could not be held liable through the normal principle of vicarious liability that requires the employee to be first held liable.
It can be argued that the certainty of immunity will allow public servants to go about their duties without being unduly risk-averse. The danger, however, is that the flip side of this coin may involve a somewhat cavalier approach to their responsibilities. In more concrete terms, the Government proposal, as well as blocking a legal remedy for those who have had their rights violated, removes the prospect of compensation. Both these downsides would be remedied to a large degree if public servants were granted an indemnity but not immunity.
This would deliver a type of accountability more appropriate to a modern society. Public servants would have to work with the stricture that they could be held personally responsible in court for any civil wrongs they had committed. They would not be part of what Sir Grant described as a "faceless" public service. The Crown, however, would pay for any costs or damages in civil proceedings when they had acted in good faith.
The Law Commission is reviewing the 1950 Crown Proceedings Act. The matters relating to public servant liability arising from the Crouch case are more appropriately considered in that context. An issues paper is to be released by the end of June. The Government should wait for that, rather than rushing to place public servants above the law.