When Power Goes Wrong · Who Pays? · Part 19

Who controls Crown litigation and settlement strategy?

The Attorney-General and Solicitor-General have constitutional oversight of core Crown legal business. Cabinet's Crown legal-business directions regulate when Crown Law must be involved and how settlements and ex gratia payments are coordinated across government.

The department involved in a dispute is not always free to conduct Crown litigation or settle it as if it were a private company.

The Cabinet Directions for the Conduct of Crown Legal Business state that the Law Officers—the Attorney-General and Solicitor-General—have constitutional responsibility for determining the Crown's view of the law and ensuring Crown litigation is properly conducted.

The Directions also state that settlement of litigation, disputes short of litigation, and ex gratia payments in legal disputes may require involvement beyond the department. Solicitor-General advice may be sought to promote consistency across Government.

There are two control chains.The department owns operational facts and often the financial consequence; the Law Officers/Crown Law oversee core Crown legal positions and litigation; financial approval then runs through CO (18) 2.

Legal oversightAttorney-General / Solicitor-General / Crown Law under the Cabinet Directions.

Operational clientResponsible department or agency.

Financial approvalChief executive, appropriation Minister or Cabinet depending on amount/type.

ReasonConsistency of Crown legal positions and lawful use of public money.

A settlement can therefore require agreement across legal, departmental and fiscal authority lines.

Current Crown legal directionsCO (16) 2 — Cabinet Directions for the Conduct of Crown Legal Business 2016.

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