R (on the application of Black) v Secretary of State for Justice [2017] UKSC 81

A prisoner with health problems exacerbated by tobacco smoke challenged the Secretary of State's refusal to allow prisoners access to the NHS Smoke-free Compliance Line, arguing the smoking ban in the Health Act 2006 bound the Crown. The Supreme Court dismissed the appeal, holding the Crown was not bound.

Facts

The appellant, a prisoner serving an indeterminate sentence at HMP Wymott, suffered from hypertension, coronary heart disease and a history of myocardial infarction, all exacerbated by exposure to tobacco smoke. He complained that the smoking ban in Chapter 1 of Part 1 of the Health Act 2006 was not properly enforced in the common parts of the prison, where staff and prisoners allegedly smoked in prohibited areas.

In September 2013, he requested that the NHS Smoke-free Compliance Line (SFCL) be added to the prison phone system so prisoners could report breaches to enforcing local authorities. Although the prison initially agreed to provide him with access, the Secretary of State responded to his pre-action protocol letter stating that Part 1 of the Health Act did not bind the Crown, so local authorities had no statutory enforcement role at the prison.

Singh J quashed that decision, holding the Act bound the Crown. The Court of Appeal reversed that ruling. The appellant appealed to the Supreme Court.

Issues

The principal issue was whether the Crown is bound by the smoking ban contained in Chapter 1 of Part 1 of the Health Act 2006. This raised the wider question of how the presumption that statutes do not bind the Crown save by express words or necessary implication should be applied.

Arguments

Appellant

Mr Havers QC put forward three alternative submissions: (1) the Court should revisit and reverse the presumption; (2) the Court should modify the test; or (3) on a proper application of the existing rule, the smoking ban bound the Crown. He emphasised the legislative purpose of protecting workers and visitors from second-hand smoke, the express mention of prisons in section 3(2), and Her Majesty’s Prison Service’s apparent assumption that the ban applied to it.

Respondent

Mr Eadie QC accepted that R (Revenue and Customs Comrs) v Liverpool Coroner was rightly decided but maintained that the long-established presumption applied, and nothing in the 2006 Act bound the Crown by express words or necessary implication.

Judgment

Lady Hale (with whom Lord Mance, Lord Kerr, Lord Hughes and Lord Lloyd-Jones agreed) dismissed the appeal.

The presumption

The Court reviewed Province of Bombay v Municipal Corporation of the City of Bombay [1947] AC 58 and Lord Advocate v Dumbarton District Council [1990] 2 AC 580, reaffirming the classic rule that the Crown is not bound except by express words or necessary implication. Although acknowledging academic criticism (Glanville Williams, Bennion, Craig), the Court declined to abolish or reverse the presumption because countless statutes had been drafted in reliance on it; any change should come from Parliament, possibly with assistance from the Law Commission.

Clarifying the test

The Court set out clarifying propositions: the rule is one of statutory interpretation aimed at discovering Parliament’s intention from the words, context and purpose of the Act; it is not enough that the Act is for the public good; the purpose need not be “wholly frustrated” if the Crown were not bound (the Liverpool Coroner case being an example where an important purpose, rather than the whole purpose, would have been frustrated); the likelihood of voluntary Crown action may be considered.

Application to the Act

The Court accepted strong arguments for binding the Crown: the absence of any indication in pre-legislative materials that government premises would be exempt; the significant differences between a statutory and voluntary ban (criminal sanctions, mandatory signage stating “It is against the law to smoke”, enforcement by environmental health officers, powers of entry); and the express mention of prisons in section 3(2), most of which are Crown-run.

However, decisive countervailing factors prevailed. The Act does not expressly bind the Crown though it would have been easy to do so. Comparable legislation (Health and Safety at Work etc Act 1974, section 48; Food Safety Act 1990, section 54) contains carefully tailored Crown application provisions. Most tellingly, the 2006 Act itself contains such a provision in section 23 (Chapter 1 of Part 3, controlled drugs), expressly binding the Crown but excluding criminal liability. The Scottish equivalent (Smoking, Health and Social Care (Scotland) Act 2005, section 10) similarly contains an express Crown application clause. The Health Committee’s report showed Parliament was alive to the Crown immunity question. Unlike the Liverpool Coroner case, the Act’s purpose was not unworkable without binding the Crown, since voluntary action could substantially fill the gap.

Lady Hale concluded, “not without considerable reluctance”, that the fact Parliament made tailored provision where it did intend to bind the Crown was conclusive.

Implications

The decision reaffirms the presumption that statutes do not bind the Crown save by express words or necessary implication, while clarifying that “necessary implication” must be assessed in light of the words, context and purpose of the legislation, and that the purpose need not be “wholly frustrated” before the Crown will be held bound. The likely effectiveness of voluntary Crown action is a relevant factor.

The judgment provides important guidance for statutory interpretation generally and signals judicial discomfort with the current rule, with Lady Hale expressly urging Parliament and possibly the Law Commission to reconsider whether the presumption should be reversed. The Court declined to do so itself because of the retrospective effect on legislation drafted in reliance on the existing rule.

Practically, the decision means that smoking in Crown premises, including state-run prisons and central government departments, is not subject to the statutory criminal sanctions or local authority enforcement under the Health Act 2006, leaving enforcement to voluntary measures and, ultimately, judicial review. The decision is significant for prisoners, civil servants and visitors to government premises, and demonstrates that drafting practice — particularly the inclusion of tailored Crown application clauses in some Parts of an Act but not others — can be decisive in determining whether the Crown is bound.

Verdict: Appeal dismissed. The Crown is not bound by the smoking ban in Chapter 1 of Part 1 of the Health Act 2006.

Source: R (on the application of Black) v Secretary of State for Justice [2017] UKSC 81