WATCH | State to assume civil liability for public officials under proposed law

Government will be tabling a bill in parliament aimed at creating a legal framework for civil liability of public officials and entities.

Prime Minister Robert Abela said the legislation seeks to address the lack of comprehensive legal regime in the law, which he argued leaves public officials exposed to personal liability and can lead to over-cautious decision-making within the public administration.

Under the new law, the state will assume civil liability and pay damages ordered by a court or tribunal for acts performed in the exercise of a public function, including associated legal costs. This also extends to precautionary acts, such as sequestration, until a final judgment is issued.

During a press conference addressed by himself, Justice Minister Jonathan Attard and Principle Permanent Secretary Tony Sultana, PM Abela said the Bill was drawn up after being repeatedly told by public service workers they were being targeted by “certain individuals” to slow down the wider government’s work “for ulterior objectives”.

He said government wants the Bill to be enacted before parliament’s summer recess.

The court will determine whether an act was performed in the exercise of a public function through civil proceedings. The relevant entity and the State Advocate will be notified and have the right to intervene in legal proceedings. This means the government can present its sworn reply and any other judicial acts that parties in the case may present.

While precautionary warrants, such as sequestration, can still be issued against covered individuals, the State will serve as a guarantor for any sum the Court orders to be secured, pending a final judgment. Once the State provides such a guarantee, warrants or precautionary acts against the defendant will be immediately revoked.

If it is established by a criminal court that a person acted with malicious criminal intent or gross negligence, the state will not be liable for damages from the outset. However, the State retains the right to recover any payments made if the Court determines there was malicious criminal intent or gross negligence.

The proposed act applies to a wide range of individuals and entities within the state administration. It includes public officials and public service members as defined in the Constitution, as well as members of disciplined forces such as the police and Armed Forces of Malta (AFM).

It also encompasses the public administration, covering the government, its ministries, departments, specialised bodies, agencies, government entities, commissions and boards. Additionally, it applies to individuals holding positions established by or provided for in the Constitution, such as members of the judiciary, Parliament, constitutional commissions, and to anyone employed or otherwise legally performing a public function as part of the government’s executive operations.

Defining gross negligence and malicious criminal intent

The law does not precisely define ‘gross negligence’ but generally, it refers to a serious lack of thought or care that a reasonable person would not exhibit, even accounting for human error. Some English cases refer to it as ‘wilful blindness’ or ‘conscious avoidance’.

Judicial interpretations describe gross negligence as more than ordinary negligence, representing indifference or extreme carelessness.

Courts will consider if the person knew or should have known their actions would lead to harm and still chose not to take precautions. In cases of physical harm or professional misconduct. The court may also consider the person's professional experience and whether they possessed knowledge or training that would increase their responsibility.

The court will determine the presence of gross negligence or malicious criminal intent through a definitive judgment based on the facts and their interpretation. This new law will not prevent the initiation or continuation of criminal or disciplinary proceedings, even if civil proceedings are underway.

Following a final judgment, the state will pay damages if the act was performed in the exercise of a public function. However, if the court determines that the act was not performed in the exercise of a public function or was a result of malicious criminal intent or gross negligence, the State may recover the payment from the individual.