Free to light up… for a little longer

15 March 2016 by Dominic Ruck Keene

Photo credit: The Guardian

In Secretary of State for Justice v Paul Black [2016] EWCA Civ 125 (read judgment) the Court of Appeal ruled that the Crown was not bound by Part 1 of the Health Act 2006 to ban smoking inside public prisons.

Paul Black, an inmate at HMP Wymott in Lancashire, complained that prison smoking rules were being flouted and should be made legally enforceable under Part 1. His lawyers told the hearings he suffered from a range of health problems due to frequent exposure to second-hand smoke, in particular on prison landings, in laundry rooms and in healthcare waiting rooms.

The Master of the Rolls, Lord Dyson, gave the only judgment. He identified the relevant issue as whether Part I of the Health Act 2006  applied to Crown premises, and in particular whether it applies to HMP Wymott. Part 1 made provision for the prohibition of smoking in certain defined ‘smoke-free’ premises and places, as well as for exceptions to the general prohibition. Section 3(2) enables ministers to make a special exemption for prisons.

The Master of the Rolls further summarised the relevant principle of law that no statute bound the Crown unless (i) there was an express provision to that effect (which was not the case with Part 1); or (ii) that was that the necessary implication of the legislation. He reviewed the relevant case law underpinning that principle, including as to whether the insertion of a particular exception or exemption clause applying to the Crown represented the totality any such exception or exemption for the Crown:

“Necessary implication is a strict test, not least because nothing is easier than to provide expressly that the statute (or the particular statutory provision in question) is binding on the Crown… Parliament is presumed to know how strict a test it is. The courts have variously said that the implication must be necessary because without it the legislation would be ‘unmeaning’; or it must be ‘manifest from the very terms of the statute that it was the intention of the legislature that the Crown should be bound’…; or that the test is not satisfied ‘unless there can somehow be gathered from the terms of the relevant Act an intention [that the Crown is bound]’. Care must be taken not to ‘whittle down’the principle by importing notions of reasonableness or efficiency. It is not sufficient that the implication would be desirable, reasonable or sensible. Nor is it sufficient that the statute in question has been passed for the public good… The test may be satisfied if the statutory purpose would be wholly frustrated were the Crown not to be bound by its terms… In determining whether the objects of a statute would be wholly frustrated if the Crown were not bound, the courts presume that the Crown acts responsibly in the public interest and in accordance with any policies which are broadly intended to meet those objects.”

At first instance Mr Justice Singh held that it was clear from the terms of the Act, read in its proper context that it should apply to all public places and workplaces which fell within its scope, including those for which the Crown was responsible.

“The beneficent purpose of the Act would be ‘wholly frustrated’ if the Crown were not bound by it. It was clear from the terms of the Act that Parliament had decided that the time had come when the criminal law had to enter this area of social life; the time had passed when it could simply be left to action through the powers of employers, landowners and Government policy.”

He further held that the express reference to the possibility of an exemption being made in respect of prisons in Part 1 was a statutory indicator that Parliament envisaged that, subject to any express exemption, prisons would be covered by the Act. “There was no indication in the Act that Parliament intended the reference to prisons to be confined to the small number of existing private prisons or indeed to draw any distinction between private and public prisons in this context.”

Before the Court of Appeal Mr Black argued that the legislative background to the 2006 Act demonstrated that Parliament’s intention was for the statutory ban was to apply to all public places and workplaces, including those for which the Crown was responsible. Mr Black’s arguments were summarised as:

“Court control by means of judicial review is a poor substitute for the scheme created by the Act. It follows that, if the Crown were not bound by the Act, the statutory purpose would be frustrated. Parliament cannot have intended that the beneficent purpose of the Act should only apply to private prisons (approximately 10% of the total number at the time of the passing of the Act). If the Crown were not bound by Chapter 1 of Part 1 of the Act, this beneficent purpose would be wholly frustrated.”

The Master of the Rolls in considering the application of the relevant legal principle held that:

“… in construing a statute, the court’s task is to ascertain the intention of the legislature. But in conducting that exercise, the court should give full weight to the strictness of the test that must be satisfied for the Crown to be bound by a statute. In ascertaining the legislative intention, the court should presume that Parliament is aware of the test and that, if it intends the Crown to be bound by a statute, it is very easy to say so.”

He added that he did not consider the purpose of the 2006 Act would be wholly frustrated if Part 1 did not apply to the Crown. He stated that:

“Although it is true that the 2004 White Paper (i) recognised the dangers of both active and passive smoking, (ii) noted a change in public attitude to smoking restrictions over recent years and (iii) expressed the desire to “shift the balance significantly” in favour of smoke-free environments, nevertheless it also stated that whether to ban smoking in certain establishments (including prisons) would need to be the subject of consultation. In other words, it acknowledged that it would not necessarily be appropriate to extend the smoking ban to all premises. Although the general aim of the Act was to shift the balance in favour of smoke-free environments, the Act did not require all premises to be smoke-free. Smoke-free premises are carefully defined. Moreover, there is a wide power in section 3(1) to pass regulations excluding categories of premises from the reach of section 2. The purpose of the Act cannot, therefore, be said to be to apply Chapter 1 of Part 1 to all premises. In these circumstances, it is impossible to hold that, if Chapter 1 of Part 1 were not to apply to the Crown, the purpose of the Act would be wholly frustrated.”

He went onto hold that:

“I accept that judicial review is a less effective means of control than the methods of enforcement (backed by the sanction of the criminal law) provided by the Act. But the question is whether the statutory purpose would be wholly frustrated if the Crown were not bound. The case law shows that the courts are unwilling to answer this question in the affirmative in circumstances where it is to be expected that the Crown will act in the public interest so as substantially to meet the statutory objectives even if it is under no statutory obligation to do so.”

The Master of the Rolls also considered Mr Black’s arguments concerning the effect of the provisions in Part 3 of the Act regarding the Crown’s liability for breach of provisions regarding controlled drugs. He stated that:

“The rule that the Crown is not bound by a statute unless bound expressly or by necessary implication is a powerful one. In particular, the necessary implication test is not satisfied simply because the Crown is not included in a statutory list of exempt bodies. But the converse is not true. Where the statute states that the Crown is bound by some of its provisions and is silent as to whether it is bound by any other provisions, that is highly relevant to the question whether the Crown is bound by those other provisions. This is because it sheds light on whether there is a necessary implication that the Crown is bound by the other provisions.”

Comment

The Court of Appeal’s judgment enables the Government to continue with its policy of a phased roll-out of the smoking ban in prisons. The Government had argued at the hearing that a blanket, immediate ban on smoking in public prisons could cause discipline problems and risk the safety of staff and inmates.

More significantly, the Master of the Rolls has given an interesting judgment illustrating the application of a relatively uncommon but deep-rooted principle of statutory interpretation. The prerogative powers of the Crown, such as to run prisons and enforce rules therein, are still important and will not be not be unduly limited by the courts.

 (Philip Havers QC and Shaheen Rahman of 1COR – instructed by Leigh Day – acted for Paul Black.)