Judicial Independence and the Limits of Crown Vicarious Liability: Commentary on X v The Lord Advocate [2025] UKSC 44

1. Introduction

This Supreme Court decision addresses a novel and sensitive question: can the Crown – here, in its Scottish incarnation as the Scottish Government – be held vicariously liable in delict for sexual assaults and harassment allegedly committed by a serving sheriff?

The pursuer, an anonymised legal practitioner, alleged a series of incidents in 2018 involving inappropriate and non-consensual physical contact and communications by Sheriff John Brown. Three incidents were accepted (for the purposes of legal argument) as constituting assaults, and the four incidents together were said to amount to harassment contrary to the Protection from Harassment Act 1997.

The core legal issue, however, was not whether the sheriff committed these delicts – that was assumed but not determined – but whether the Crown is vicariously liable for them. That question turns on:

the scope and interpretation of section 2(1)(a) of the Crown Proceedings Act 1947 (“CPA 1947”); and
the modern common law doctrine of vicarious liability, particularly the “akin to employment” test and the “close connection” test.

The Supreme Court unanimously dismissed the appeal, holding that:

section 2(1)(a) CPA 1947 incorporates the evolving common law of vicarious liability – it is not a closed statutory code fixed in 1947; and
the relationship between a sheriff and the Scottish Government is not akin to employment, chiefly because of the constitutional principle of judicial independence and the absence of executive control over judicial functions.

The decision therefore establishes two important points of principle:

The Crown’s liability under section 2(1)(a) is to be determined by the same, evolving vicarious liability tests that apply to private persons, including the “akin to employment” doctrine.
Judicial office-holders, though officers of the Crown, are not in an employment-like relationship with Government for vicarious liability purposes, precisely because of their institutional and functional independence.

2. Background and Procedural History

2.1 The alleged delicts

The pursuer alleged four episodes in 2018 involving Sheriff Brown:

18 May 2018 – court building: after a case was adjourned for technical reasons, the pursuer apologised to the sheriff, who allegedly touched her cheek without consent.
5 July 2018 – in chambers: the sheriff had the pursuer brought to his chambers. There, he allegedly:
- hugged her without consent (twice);
- used inappropriate terms such as “your pretty face”;
- patted her firmly on the bottom as she left a secure area.
The pursuer felt unable to leave due to the power imbalance and being in a secure court area.
19 July 2018 – on a train: the sheriff sat beside the pursuer, said he had been looking for her, and allegedly placed his hand on her inner thigh, stopped only by her moving a bag to block him.
24 August 2018 – FaceTime call: after she complained to the Judicial Office on 7 August, the sheriff made a FaceTime call to her phone. She did not answer and believed the call was connected to her complaint. She complained again.

On the assumed facts, it was uncontroversial that:

the first three incidents constituted assaults in Scots law; and
taken together, all four incidents amounted to harassment contrary to the Protection from Harassment Act 1997.

The question was whether, in addition to the sheriff’s personal liability, the Crown (represented in Scotland by the Lord Advocate on behalf of the Scottish Ministers) was vicariously liable.

2.2 The statutory backdrop: making the Crown suable in delict

Before the CPA 1947, the orthodox position, confirmed in Macgregor v Lord Advocate 1921 SC 847, was that the Crown could not be sued in delict or tort. The 1947 Act’s central purpose was to remove that immunity and to place “the Crown” in much the same position as a private litigant, subject to important exceptions. Section 2 provides, so far as relevant:

“(1) Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in tort [delict] 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; …”

Section 2 is supplemented by:

section 40(2)(b), which limits proceedings to liabilities “in respect of His Majesty’s Government in the United Kingdom or the Scottish Administration”;
section 2(5), which excludes liability for acts done “while discharging … responsibilities of a judicial nature” or in executing judicial process; and
section 43(b), which provides that “tort” means “any wrongful or negligent act or omission giving rise to liability in reparation” in Scotland.

The Scotland Act 1998, and associated amendments, then:

defined the Scottish Administration and the Scottish Government; and
amended the CPA 1947 and the Crown Suits (Scotland) Act 1857 so that proceedings in respect of liabilities of the Scottish Administration are brought against the Lord Advocate.

2.3 The Outer House decision

In the Outer House, Lord Clark (X v Y [2023] CSOH 17; 2023 SC 235):

held that the pursuer’s vicarious liability claim was relevant (i.e. not bound to fail) for the first two incidents (in the court building), but not for the train incident and the FaceTime call, which he regarded as too remote from the sheriff’s judicial role;
reasoned that a sheriff was a Crown servant and that the relationship with the Crown was akin to employment, so stage 1 of vicarious liability was met;
treated section 2(5) CPA 1947 (judicial functions carve‑out) as implying that, absent the carve‑out, sheriffs would otherwise give rise to Crown vicarious liability; and
nevertheless found that the assault claims were time-barred (having been raised more than three years after the delicts), though he did not regard the harassment claim on the same footing.

On procedure, Lord Clark held that the claim properly lay against the Lord Advocate (for the Scottish Administration) rather than the Advocate General for Scotland, because the relevant “face of the Crown” was the Scottish Government, responsible for appointment, removal, and remuneration of sheriffs.

2.4 The Inner House decision

The Lord Advocate reclaimed (appealed) on vicarious liability; the pursuer appealed on time bar. The Inner House (Lord Doherty, Lord Boyd of Duncansby and Lady Wise) in X v Brown [2024] CSIH 6; 2024 SC 309:

allowed the Lord Advocate’s appeal on vicarious liability, holding that the claim was bound to fail at stage 1; and
indicated (obiter) that they would have allowed the pursuer’s appeal on limitation had that been necessary.

The Inner House reasoned that:

judicial office-holders are officers of the Crown, not “Crown servants” in the ordinary sense used in section 2(1)(a);
more fundamentally, the relationship between the Scottish Government and the judiciary is not akin to employment, because:
- the Scottish Government has no control over judicial performance; and
- treating judges as akin to employees would undermine the constitutional principle of judicial independence.
They agreed with Lord Clark’s use of the close connection test at stage 2 for the first two incidents, but would not have struck out the claims relating to the third and fourth incidents without evidence.

2.5 The appeal to the Supreme Court

The pursuer appealed to the Supreme Court solely on the vicarious liability issue. If she could not succeed at stage 1 against the Crown, there was no utility in exploring time bar or stage 2. The Supreme Court (Lord Reed and Lord Burrows giving the joint judgment, with whom Lord Hodge, Lord Briggs and Lady Simler agreed) dismissed the appeal.

3. Summary of the Supreme Court’s Judgment

The Supreme Court’s reasoning can be summarised in three central conclusions:

3.1 Interpretation of section 2(1)(a) CPA 1947

Section 2(1)(a):

is not a self‑contained statutory definition of the class of wrongdoers for whom the Crown is vicariously liable, frozen as at 1947; and
instead, imports the whole of the common law of vicarious liability “as if [the Crown] were a private person of full age and capacity”.

Consequently, modern developments such as:

the extension of vicarious liability to relationships “akin to employment”, and
the close connection test for stage 2,

apply equally when determining whether the Crown is liable under section 2(1)(a).

3.2 The relevant “Crown” and the Lord Advocate as defendant

Drawing on section 40(2)(b) CPA 1947 and section 99 of the Scotland Act 1998, the Court held that:

“the Crown” in this context means the Sovereign in an official capacity, but only in respect of His Majesty’s Government in the United Kingdom or the Scottish Administration;
in Scotland, liabilities arising “in respect of the Scottish Administration” must be sued upon against the Lord Advocate under sections 1 and 4A of the Crown Suits (Scotland) Act 1857; and
the relevant manifestation of the Crown here is the Scottish Government, as part of the Scottish Administration, because it is through the Scottish Ministers that the Crown appoints, remunerates and, ultimately, removes sheriffs.

The Court confirmed the Outer House’s (unchallenged) conclusion that the Lord Advocate was the correct defendant.

3.3 No relationship “akin to employment” between sheriffs and the Scottish Government

Applying the two-stage vicarious liability framework from BXB v Trustees of the Barry Congregation of Jehovah’s Witnesses [2023] UKSC 15; [2024] AC 567:

Stage 1 – relationship:
- Judicial office-holders are not employees of Government and have no contract of employment.
- Nor is their relationship with the Scottish Government “akin to employment”.
- Two decisive factors:
  1. Lack of control: the Scottish Government has no control over how sheriffs perform their judicial functions; listing and case allocation are matters for the judiciary.
  2. Judicial independence: the constitutional requirement that judges be independent of the executive and legislature (enshrined in section 3 Constitutional Reform Act 2005 and section 1 Judiciary and Courts (Scotland) Act 2008) is fundamentally incompatible with an employment‑type relationship.
Stage 2 – close connection:
- Because the pursuer failed at stage 1, the Supreme Court did not finally decide stage 2, although it noted the lower courts’ differing views as to which incidents were sufficiently connected with the sheriff’s role.

Accordingly, no vicarious liability could attach to the Crown (acting through the Scottish Government) in respect of the sheriff’s alleged delicts.

4. Analysis

4.1 The legal framework for vicarious liability

The Court adopts and applies the modern two‑stage test set out in BXB:

Stage 1 – Relationship
Is the relationship between the defendant and the wrongdoer:
- one of employment, or
- akin to employment (a relationship so close to employment in its incidents that it is just to impose vicarious liability)?
Stage 2 – Close connection
Was the wrongful act so closely connected with acts the wrongdoer was authorised to do that it can fairly and properly be regarded as done in the course of that employment or quasi‑employment?

The Supreme Court emphasises that the Crown is not treated differently at the level of principle: the same two stages must be applied to it as would be applied to any private employer. Section 2(1)(a) CPA 1947 is the vehicle that subjects the Crown to these common law principles; it does not carve out a bespoke, parallel regime.

4.2 Precedents and authorities cited

4.2.1 Modern vicarious liability: BXB and Barclays Bank

The Court leans on its own recent authority in BXB v Trustees of the Barry Congregation of Jehovah’s Witnesses, where it re‑stated and refined the two‑stage test for vicarious liability, especially in the context of sexual abuse. BXB:

confirmed the centrality of the “akin to employment” concept; and
emphasised that vicarious liability is not open-ended; it turns on principled criteria such as control, integration, and the business or institutional context.

The Court also references Various Claimants v Barclays Bank plc [2020] UKSC 13; [2020] AC 973, in which Lady Hale stressed that:

the classification of a person as a “worker” for employment rights purposes and as an individual whose acts attract vicarious liability are related but distinct inquiries;
nevertheless, the underlying rationales – especially control and integration – overlap and the constitutional context is highly relevant in borderline cases.

4.2.2 Judicial independence and employment status: Gilham v Ministry of Justice

In Gilham v Ministry of Justice [2019] UKSC 44; [2019] 1 WLR 5905, the Court held that a district judge was not a “worker” or in “Crown employment” for the purposes of whistle‑blowing protections in the Employment Rights Act 1996. Lady Hale highlighted:

the fragmented responsibility for the judiciary (between, for example, the Lord Chancellor and the Lord Chief Justice); and
the constitutional separation of powers, which makes judges a distinct branch of Government, not simply employees of a Minister.

The Court in X v The Lord Advocate imports this reasoning into the vicarious liability context: if the constitutional position of judges militates against their being “workers” under employment legislation, it similarly militates against characterising their relationship with the executive as “akin to employment” for vicarious liability purposes.

4.2.3 Statutory interpretation and the “always speaking” principle: News Corp and others

The Court situates its interpretative approach within a line of recent cases:

R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [2022] UKSC 3; [2023] AC 255;
News Corp UK & Ireland Ltd v Revenue and Customs Commissioners [2023] UKSC 7; [2024] AC 89;
R (N3) v Secretary of State for the Home Department [2025] UKSC 6; [2025] 2 WLR 386; and
Darwall v Dartmoor National Park Authority [2025] UKSC 20; [2025] AC 1292.

These cases reaffirm the “modern approach”:

start with the ordinary meaning of the words;
consider their meaning in context and in light of the statutory purpose; and
apply, where appropriate, the “always speaking” principle, under which general statutory language is interpreted in the light of subsequent social, technological or legal developments, unless the wording or context precludes it.

In News Corp, the Court accepted the principle but held that EU law constraints prevented interpreting “newspapers” so expansively as to include digital editions. In X v The Lord Advocate, by contrast, the Court finds the text of section 2(1)(a) sufficiently general to allow the incorporation of modern vicarious liability concepts that have developed since 1947.

4.2.4 The nature of the Crown: Town Investments, M v Home Office and others

The Court engages extensively with Lord Diplock’s well‑known dictum in Town Investments Ltd v Department of the Environment [1978] AC 359, where he suggested that, in the context of executive powers, lawyers might more usefully speak of “the government” rather than “the Crown”. It treats this dictum with caution, noting:

Lord Diplock was addressing the rule that the Crown is not bound by statute absent express words or necessary implication – a different context; and
he appeared to blur the distinction between the Crown and its ministers by suggesting that “the Crown” embraces ministers individually and collectively, an approach difficult to reconcile with other authority.

The Court prefers the approach in:

M v Home Office [1994] 1 AC 377, where Lord Woolf stressed that ministers are personally liable for their own wrongs and cannot hide behind “the Crown”; and
historical authorities such as The Case of Sutton’s Hospital (1611) and Attorney General v Köhler (1861), which treat the Crown as a corporation sole distinct from the natural person of the monarch.

This feeds into the Court’s careful analysis of what “the Crown” means in the CPA 1947:

by virtue of section 30 of the Interpretation Act 1889 (in force when the CPA 1947 was enacted), a reference to “the Crown” is a reference to the Sovereign for the time being in his official capacity;
however, the CPA 1947 itself (especially section 40) recognises that the Crown acts in different capacities – as head of the UK Government, as head of the Scottish Administration, as legislator, as head of overseas territories, and in a private capacity (e.g. as Duke of Lancaster).

The Court draws on a series of cases to illustrate how these capacities matter in practice, particularly in relation to territorial limitations:

Trawnik v Lennox [1985] 1 WLR 532 (military base in West Germany);
R v Secretary of State for the Home Department, ex p Bhurosah [1968] 1 QB 266 (Crown in right of Mauritius);
Franklin v Attorney General [1974] QB 185 and Mutasa v Attorney General [1980] QB 114 (Southern Rhodesia);
R v Secretary of State for Foreign and Commonwealth Affairs, ex p Indian Association of Alberta [1982] QB 892 (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 (Crown in right of South Georgia and the South Sandwich Islands).

These authorities support the Court’s conclusion that only some capacities of the Crown are brought within the CPA 1947, and in particular that section 2 liability attaches only when the Crown is acting “in respect of His Majesty’s Government in the United Kingdom or the Scottish Administration”.

4.2.5 The scope of “proceedings against the Crown”: British Medical Association

The Court refers to British Medical Association v Greater Glasgow Health Board 1989 SC (HL) 65; [1989] AC 1211, where the House of Lords considered whether proceedings against a Scottish health board were “proceedings against the Crown” for the purposes of section 21 CPA 1947. Lord Jauncey stressed the relevance of section 17(3) CPA 1947 – which requires civil proceedings against the Crown to be brought against the appropriate government department – as indicating what sort of proceedings Parliament had in mind.

Although section 17 does not apply to Scotland (because of the separate regime in the Crown Suits (Scotland) Act 1857), the Supreme Court uses this line of authority to reinforce its interpretation that:

CPA 1947 proceedings are aimed at liabilities arising from the activities of government departments and parts of the Scottish Administration; and
they are to be sued upon against the appropriate Law Officer (for Scotland, typically the Lord Advocate).

4.3 The Court’s legal reasoning

4.3.1 Identifying the relevant capacity of the Crown

The Court’s first major analytical step is to clarify that:

“the Crown” in the CPA 1947 refers to the Sovereign in an official capacity, but not all official capacities are embraced;
by virtue of section 40(2)(b), proceedings under the Act must concern liabilities “in respect of His Majesty’s Government in the United Kingdom or the Scottish Administration”; and
other aspects of the Crown’s authority – such as its legislative role or its role as head of foreign governments or overseas territories – are outside the scope of section 2.

In the present case, the relevant capacity of the Crown is that of head of the Scottish Administration, and more narrowly the Scottish Government. It is through the Scottish Government that:

sheriffs are appointed (by the monarch on the First Minister’s recommendation);
their salaries are paid from the Scottish Consolidated Fund; and
they are removed from office (on the First Minister’s order, following a tribunal process under the Courts Reform (Scotland) Act 2014).

This leads to the procedural consequence that the Lord Advocate is the proper defendant, as the appropriate Law Officer for claims “against any part of the Scottish Administration” under section 1 and 4A of the Crown Suits (Scotland) Act 1857.

4.3.2 Interpreting section 2(1)(a): does it freeze vicarious liability at 1947?

The pursuer’s primary submission was that section 2(1)(a) is self‑contained, so that:

if the alleged wrongdoer is a “servant of the Crown”, stage 1 is automatically satisfied; and
the subsequent expansion of the common law vicarious liability doctrine to relationships “akin to employment” is irrelevant, because Parliament in 1947 tied Crown liability exclusively to “servants or agents”.

On that view, the key battleground would be whether a sheriff is a “servant of the Crown” (as opposed, say, to an “officer” of the Crown). The pursuer relied on:

the way “officer” is defined in section 38(2) to include “any servant of His Majesty”, suggesting conceptual overlap;
commentaries such as Glanville Williams’ Crown Proceedings (1948) and R.M. Bell’s work, interpreting “officer” and “servant” in a broadly co‑extensive way within the CPA 1947; and
Lord Diplock’s dissent in Ranaweera v Ramachandran [1970] AC 962, suggesting that a Crown servant may carry out functions of the Crown (including judicial functions) despite being independent in performing them.

The Supreme Court found this entire approach misconceived. The key provision is the opening clause of section 2(1):

“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…”

On a purposive and contextual reading:

section 2(1)(a) is intended to subject the Crown to the ordinary law of vicarious liability – whatever that law happens to be – in respect of torts/delicts committed by those to whom that law would attach if the Crown were a private person;
it is not designed to create a special, broader or narrower regime that floats free of the common law; and
it is likewise not designed to make stage 1 of vicarious liability automatic whenever the wrongdoer is classified as a “servant of the Crown”.

The Court therefore holds that section 2(1)(a):

must be understood as a bridge between the Crown and the common law of vicarious liability; and
by virtue of the “always speaking” principle, it remains in step with modern developments in that common law (such as the “akin to employment” concept and refinements of the close connection test).

In other words, the statute does not stand still even though the words are the same; Parliament used general language precisely to ensure the Crown’s liability would track the evolving common law.

4.3.3 The role of section 2(5): no inference that judges are Crown servants

Section 2(5) provides that no proceedings lie against the Crown under section 2 “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 …”.

Lord Clark in the Outer House had treated this as implying that:

but for section 2(5), the Crown would be vicariously liable for all judicial acts; and therefore
judicial office-holders must be “servants or agents” of the Crown for section 2(1)(a) purposes.

The Supreme Court rejects this reasoning as a non sequitur:

section 2(5) does not logically entail that judges are Crown servants; it simply puts beyond doubt that, even if the other conditions of vicarious liability were met, there is no Crown liability for the exercise (or purported exercise) of judicial functions;
the provision also applies to many persons who are clearly employees of the Crown but who discharge judicial-type functions (e.g. in tribunals or quasi-judicial bodies), showing that the subsection is not tailored solely to judges; and
more fundamentally, section 2(5) reflects the constitutional reality that the executive cannot control, and therefore should not be liable for, how judicial functions are exercised.

In this case, the alleged assaults and harassment were not acts done in discharging judicial functions, so section 2(5) was not directly engaged. But the Court’s reading of it underlines that:

it cannot be used as a shortcut to conclude that judges satisfy stage 1 of the vicarious liability test; and
it is consistent with, rather than contrary to, the idea that judicial independence limits the scope for executive vicarious liability.

4.3.4 Applying stage 1: are sheriffs in a relationship akin to employment with the Scottish Government?

Having established that the common law test applies, the Court assesses whether, as between:

the Scottish Government (as part of the Scottish Administration), and
the sheriff,

there exists a relationship “akin to employment”.

The Court identifies two powerful, mutually reinforcing reasons why the answer is no:

Lack of control over judicial performance
The Scottish Government:
- does not decide where and when sheriffs sit – listing is controlled by the judiciary;
- cannot direct how sheriffs decide cases or conduct proceedings; and
- has only indirect and exceptional mechanisms for removal – via an independent tribunal and parliamentary involvement under sections 21–25 of the Courts Reform (Scotland) Act 2014.
This falls far short of the sort of managerial or supervisory control characteristic of an employment or quasi‑employment relationship.
Constitutional principle of judicial independence
Judicial independence is codified in:

section 3(1) Constitutional Reform Act 2005:
“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.”
section 1 Judiciary and Courts (Scotland) Act 2008, which applies the same principle explicitly to Scotland, placing duties on the First Minister, the Lord Advocate, the Scottish Ministers, MSPs and others to uphold judicial independence.

These provisions reflect and entrench the classic separation of powers: judges are constitutionally separate from and independent of the executive. They often adjudicate disputes involving the Government itself or the Scottish Ministers as parties; any perception that they are “employees” of those parties would undermine confidence in their impartiality.

The Court considers that these two factors decisively outweigh:

the facts that sheriffs:
- are remunerated from public funds managed by the Scottish Government; and
- are appointed and (in extreme cases) removed through mechanisms in which the First Minister and Scottish Ministers play a role.

Those features are constitutionally necessary but do not transform an independent constitutional office-holder into an “employee” for vicarious liability purposes.

4.4 Impact and implications

4.4.1 Immediate effect on the pursuer’s claim

For the pursuer, the practical outcome is stark:

she may proceed (subject to any limitation issues) against the sheriff personally in delict for assault and harassment; but
she cannot recover from the Scottish Government or its insurers via vicarious liability, even if her allegations are ultimately proved.

This exposes a potential remedial gap: where a judicial office‑holder is insolvent or under‑insured, victims of serious misconduct may be under‑compensated. The Court acknowledges, implicitly, that this is the price of preserving judicial independence in constitutional law, leaving any broader compensation scheme to the political and legislative sphere rather than the courts.

4.4.2 Crown liability aligns with private law developments

At a systemic level, the judgment confirms that Crown liability in tort/delict is not fossilised at the state of the law in 1947:

whenever the common law of vicarious liability evolves – e.g. clarifying the “akin to employment” test or the close connection test – the same developments apply mutatis mutandis to the Crown under section 2(1)(a);
this promotes coherence between public and private liability, avoiding a divergence where the Crown’s responsibility would be governed by an outdated model; and
it exemplifies the “always speaking” approach to statutes with broadly framed language and a clear, ongoing purpose (here, to abolish Crown immunity and assimilate the Crown’s liabilities to those of private persons).

4.4.3 Judicial independence as a structural limit on vicarious liability

The decision also cements judicial independence as a structural constraint on the reach of vicarious liability:

If a relationship requires the judge to be institutionally and functionally independent of the executive, then it cannot simultaneously be characterised as akin to employment by that executive without undermining the very independence the constitution requires.
This is likely to apply not only to Scottish sheriffs but to judges throughout the UK’s jurisdictions, and by analogy to other constitutionally independent office‑holders (e.g. certain regulators or quasi‑judicial bodies), depending on their legal status.

Combined with Gilham, the case strongly suggests that most judicial office‑holders:

are neither employees nor “workers” for employment law purposes; and
do not stand in a relationship “akin to employment” with the executive for vicarious liability purposes.

4.4.4 Clarifying “the Crown” and capacities: implications for devolution and beyond

The Court’s careful dissection of the meaning of “the Crown” and of capacity has broader implications:

It reinforces the idea, embedded in section 99 Scotland Act 1998, that the Crown in right of the Scottish Administration is a distinct legal capacity from the Crown in right of the UK Government. This matters for:
- identifying the correct defendant (Lord Advocate vs Attorney General vs Advocate General for Scotland); and
- delineating which liabilities arise “in respect of” which part of the Crown’s activities.
It underscores the territorial and functional limits on CPA 1947 proceedings, particularly in respect of overseas territories or non‑executive functions.

These clarifications will be important in future litigation concerning:

which government (UK vs Scottish) bears responsibility for a given wrong; and
whether certain bodies are properly characterised as part of “His Majesty’s Government in the United Kingdom” or the “Scottish Administration” for CPA purposes.

5. Complex Concepts Explained

5.1 Vicarious liability in simple terms

Vicarious liability is a legal rule under which one person (usually an employer) can be held liable for the wrongs of another (usually an employee), even though the employer did nothing wrong personally. The basic idea is:

if you create or control a risk by employing someone,
and that person commits a delict/tort closely linked to their work,
then you may have to pay compensation to the victim, because you are better placed to bear and spread the cost (e.g. via insurance).

The modern test has two stages:

Is the relationship between you and the wrongdoer one of:
- employment, or
- akin to employment (for example, some long‑term, integrated, subordinate working relationships that are not technically contracts of employment)?
Is there a close connection between the wrongdoing and that relationship, such that it is fair and proper to treat the act as done in the course of the employment or quasi‑employment?

5.2 “Akin to employment”

“Akin to employment” is a flexible concept used to decide whether a non‑traditional work relationship is close enough to employment that vicarious liability should apply. Relevant factors include:

how integrated the person is into the organisation’s structure;
whether the organisation controls what the person does and how they do it;
whether the person is economically dependent on the organisation; and
whether their work is part of the organisation’s “business” or institutional mission.

Judges and sheriffs are deliberately insulated from day‑to‑day control by Government, and their institutional role is constitutionally distinct, which is why the Supreme Court concluded their relationship with Government is not akin to employment.

5.3 “The Crown” and its different capacities

“The Crown” in UK constitutional law is a shorthand for the legal person that is the Sovereign in an official capacity. However, that single legal person can act in different roles or “capacities”, for example:

as head of His Majesty’s Government in the United Kingdom – the central executive;
as head of the Scottish Administration – the devolved Scottish Government and associated offices;
as legislator (part of the “King in Parliament”);
as head of the Crown in right of a foreign state or overseas territory; and
in a private capacity, for example in right of the Duchy of Lancaster.

The CPA 1947 only applies to some of these capacities – in particular, “His Majesty’s Government in the United Kingdom or the Scottish Administration” – and explicitly excludes the monarch’s private capacity.

5.4 The “always speaking” principle

The “always speaking” principle is a modern approach to statutory interpretation. It means that:

general statutory language is normally read in the light of current conditions, including:
- social and technological changes; and
- developments in the common law (judge‑made law).
Unless the statute’s wording or context shows Parliament intended to freeze the law at a particular time, courts assume Parliament intended its words to be capable of updating application.

In this case, that means that section 2(1)(a) CPA 1947 is read so as to include the subsequent development of vicarious liability doctrine, such as the “akin to employment” concept, even though Parliament did not foresee those exact doctrines in 1947.

5.5 Judicial independence and separation of powers

Judicial independence is a cornerstone of the UK constitution. It means that:

judges must be free from interference by the executive and the legislature when deciding cases;
decision‑making must be impartial and based solely on the law and the facts; and
there must be no reasonable perception that judges are beholden to one of the parties, particularly the Government.

This is reinforced by the doctrine of the separation of powers, under which:

Parliament makes the law;
the executive (Government) administers the law; and
the judiciary interprets and applies the law, including restraining the executive when it acts unlawfully.

If judges were employees or quasi‑employees of Government, their institutional independence would be compromised, or at least appear to be compromised, which is why the Supreme Court treated this as a decisive factor against finding a relationship akin to employment.

6. Conclusion

X v The Lord Advocate [2025] UKSC 44 is a significant constitutional and private law decision. It clarifies that:

the Crown Proceedings Act 1947 does not create a sealed‑off, historical code of Crown liability but instead incorporates the living common law of vicarious liability; the Crown stands where any “private person of full age and capacity” would stand, no more and no less;
the relationship between judicial office-holders (here, a Scottish sheriff) and Government is not akin to employment, because:
- Government does not control judicial performance; and
- constitutional principles of judicial independence and separation of powers require a structural distance between judiciary and executive.
as a result, the Crown is not vicariously liable in delict for personal misconduct by judges, even where that misconduct occurs in or around judicial settings and is assumed to be actionable.

The judgment also brings welcome clarity to:

the meaning of “the Crown” and its multiple capacities, especially in a devolved context;
the proper procedural route for suing the Crown in Scotland (via the Lord Advocate in respect of the Scottish Administration); and
the operation of the “always speaking” principle in maintaining coherence between statutory Crown liability and developments in the common law.

At a deeper level, the case illustrates the courts’ willingness to prioritise constitutional structure – and, in particular, judicial independence – over the expansion of vicarious liability as a mechanism of victim compensation. Victims of judicial misconduct remain entitled to sue the individual judge in delict, but the State is not automatically a financial guarantor of judicial wrongdoing. Any broader scheme of redress for such victims would, in light of this judgment, be a matter for Parliament and the devolved legislatures, not for the courts via the doctrine of vicarious liability.