Mr Black wanted prisoners to be able to report second-hand smoke to the local authority through a confidential telephone line. Whether the authority could act depended on a question of statutory interpretation: did Parliament intend the smoking ban in the Health Act 2006 to bind the Crown, which operated the prison?
Mr Black was a non-smoker whose health was affected by tobacco smoke. He alleged that people smoked in communal areas of HMP Wymott despite prison rules. The Secretary of State disputed the allegations. The Court did not have to establish what had happened at the prison to answer the legal question.
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In September 2013 the appellant asked for the National Health Service Smoke-free Compliance Line to be added to the prison telephone system so that prisoners could report breaches to the local authorities responsible for enforcement. After a pre-action letter the prison briefly arranged individual access, but the Secretary of State then stated that Part 1 of the Health Act 2006 does not bind the Crown and that local authorities therefore have no statutory enforcement role at HMP Wymott. The appellant sought judicial review of the refusal to provide confidential and anonymous access to the line. Singh J held that the Act bound the Crown and quashed the decision. The Court of Appeal held that it did not. The appellant appealed to the Supreme Court.
The smoking ban
Chapter 1 of Part 1 made enclosed or substantially enclosed public premises and workplaces smoke-free in specified circumstances. It provided for signs, offences and enforcement by local authorities. Regulations could exempt certain premises or rooms. This statutory enforcement regime mattered to Mr Black because a breach of a prison instruction would not itself give local authority officers those powers.
The legislative background included scientific recognition of the risks of second-hand smoke, the United Kingdom’s ratification of the WHO Framework Convention on Tobacco Control, and government policy favouring smoke-free enclosed public places and workplaces. Pre-legislative materials mentioned special arrangements for prisons but did not state that the legislation would exclude government premises. When the Health Committee remarked on the absence of any reference to Crown immunity, the Government replied that legislation is not usually binding on Crown land and that the Bill followed that convention, while voluntary strategies would make central government and NHS buildings smoke-free.
The rule and its application
Lady Hale, with whom Lord Mance, Lord Kerr, Lord Hughes and Lord Lloyd-Jones agreed, restated the established rule of interpretation: a statute binds the Crown only by express words or necessary implication. The rule is not a strict immunity. Intention is gathered from the words, their context and the purpose of the legislation. It is not enough that the measure is for the public good, or that binding the Crown would make it more beneficial. Nor is it necessary that the purpose would be wholly frustrated; frustration of one important purpose may suffice, as the Court accepted had occurred in the Liverpool Coroner case. Voluntary Crown action may also be taken into account. The Court declined to reverse or abolish the presumption, observing that many statutes have been drafted on its basis, and urged Parliament, perhaps with the Law Commission, to consider reform.
Points favouring the appellant included the protective purpose of the ban, the practical differences between a voluntary instruction and a ban backed by criminal offences, fixed penalties and environmental-health enforcement, the express reference to prisons in the exemption power when most prisons were Crown premises, and the Prison Service’s initial assumption that the legislation applied. Against that, the Act does not say that it binds the Crown. Comparable statutes, another chapter of the 2006 Act itself, and the earlier Scottish smoking legislation all contain express Crown-application provisions that tailor criminal liability. Parliament was alive to the question. The ban remains workable without binding the Crown, which can act voluntarily. Those indicators were treated as conclusive. The appeal therefore failed.
Verdict: The Court unanimously dismissed Mr Black’s appeal. Chapter 1 of Part 1 of the Health Act 2006 did not bind the Crown. The Court decided the reach of that statute, leaving the disputed reports of smoking and the operation of prison rules outside its ruling.
Source: R (Black) v Secretary of State for Justice [2017] UKSC 81
