Supreme Court holds that the smoking ban cannot be enforced in prisons — Hannah Wilce
21 December 2017
R (on the application of Black) v The Secretary of State for Justice  UKSC 81
Is the Crown is bound by the prohibition of smoking in most enclosed public places and workplaces, contained in Chapter 1 of Part 1 of the Health Act 2006 (“the smoking ban”)?
This was the question asked of the Supreme Court by a prisoner serving an indeterminate sentence at HMP Wymott. As Lady Hale noted in the judgment: this issue affects all premises occupied by the Crown, including central government departments, and that it is important to determine whether the ban can be properly enforced in these places.
The answer the court gave is ‘no’, as this provision does not bind the Crown, of which HMP Wymott is an institution.
The appellant is a prisoner serving an indeterminate sentence at HMP Wymott. He is a non-smoker who has a number of health problems exacerbated by tobacco smoke, including hypertension and coronary heart disease. He complained that despite the smoking ban he was regularly exposed to second-hand tobacco smoke in the common parts of the prison.
In September 2013 the appellant requested that all prisoners have the NHS Smoke-Free Compliance line (SFCL) added to the prison phone system. This line allows members of the public to report when the smoking ban has been breached. The appellant also wrote a pre-action letter to the Secretary of State explaining that he would commence Judicial Review if necessary. In January 2014 the prison granted him access to the SFCL on his individual phone account but not for other inmates. The Secretary of State responded to the appellant’s letter and told him that the smoking ban did not apply to the Crown, so did not affect the prison.
The appellant issued proceedings in March 2014 challenging the Secretary of State’s refusal to provide confidential and anonymous access to the SFCL for all prisoners. He was successful in the High Court before Singh J, who held that the ban did bind the Crown and accordingly quashed the Secretary of State’s decision. The Secretary of State then appealed to the Court of Appeal who reverse the High Court decision, holding that the Act did not bind the Crown. The appellant then appealed to the Supreme Court.
The smoking ban
The smoking ban came into force on 1 July 2007 after the Health Act 2006 was passed on 18 July 2006. It provides under section 2(1) as follows:
(1) Premises are smoke-free if they are open to the public.
But unless the premises also fall within subsection (2), they are smoke-free only when open to the public.
(2) Premises are smoke-free if they are used as a place of work – (a) by more than one person (even if the persons who work there do so at different times, or only intermittently), or (b) where members of the public might attend for the purpose of seeking or receiving goods or services from the person or persons working there (even if members of the public are not always present).
They are smoke-free all the time.
Under Section 3(1) of the Act it is provided that “appropriate national authority” (the Secretary of State in England and the National Assembly in Wales) may enact regulations exempting specified premises or areas within in them from being smoke free. Section 3(2) provides that descriptions of premises which may fall under Section 3(1) include in particular “any premises where a person has a home… (including hotels, care homes and prisons and other places where people may be detained. In discussions prior to the bill being passed Her Majesty’s Prison Service appear to have taken the view that prisons would fall under the ban and a Prison Service Instruction.
Background Case Law
The key issue in this case was whether Statutes bind the Crown. The principle is that a statutory provision does not bind the Crown except by express words or necessary implication. The two key cases are Province of Bombay v Municipal Corporation of the City of Bombay  AC 58 and Lord Advocate v Dumbarton District Council  2 AC 580. In the latter case Lord Keith concluded at 604 that:
“Accordingly it is preferable, in my view, to stick to the simple rule that the Crown is not bound by any statutory provision unless there can somehow be gathered from the terms of the relevant Act an intention to that effect. The Crown can be bound only by express words or necessary implication. The modern authorities do not, in my opinion, require that any gloss should be placed upon that formulation of the principle.”
A more recent case discussed was R (Revenue and Customs Commissioners) v Liverpool Coroners’ Court  EWHC 1586 (Admin);  QB 481, in which the High Court held that the investigatory powers under Schedule 5 of the Coroners Act 2009 were binding on the Crown because they were intended to enable coroners to conduct effective investigations into deaths for which the Crown might bear responsibility, as required by article 2 of ECHR. The legislative purpose of the Act would be “wholly frustrated” if the Crown were not bound.
Philip Havers QC for the appellant argued that the Supreme Court should either (1) revisit the rule that the Crown is not bound; (2) modify the rule; or (3) apply the existing rule in such a way that the smoking ban binds the Crown.
Lady Hale giving the only substantive judgment, held that section 2 of the Act did not bind the Crown. The Court refused to revisit or modify the rule that statutes do not bind the Crown as it was so well established that many statutes had been drafted and passed on the basis that it applied.
Lady Hale stated that: “The question is whether, in the light of the words used, their context and the purpose of the legislation, Parliament must have meant the Crown to be bound.”
She clarified the rule at paragraphs 36-37 of the judgment as follows:
- The rule did not mean that the Crown was immune from prosecution, but that the court needed to consider the intention of legislation when determining if the Crown was bound.
- Despite there being a clear public benefit to the Crown being bound by the smoking ban, the test was a question of interpretation and not overall good;
- The purpose of statute did not need to be wholly frustrated, a “very important purpose” may be sufficient; and
- The court would consider whether the Crown is likely to take some voluntary action to achieve the purpose of the statute.
The court agreed that there were some strong arguments that indicated that Parliament intended the smoking ban to apply to the Crown. For example, it was not made clear prior to the ban coming into force that it would not apply to government buildings. However, there are significant differences between the enforcement of the smoking ban and the voluntary ban of smoking in government buildings. However, with “considerable reluctance”, the appeal was dismissed.
When deciding whether the smoking ban binds the Crown the court found the following to be determinative:
- The Act does not say the smoking ban binds the Crown, as it could easily have done;
- Other similar statutes expressly state to what extent they apply to the Crown;
- Another part of the Act, relating to the supervision of management and use of controlled drugs, does refer expressly to binding the Crown;
- An identical provision to bind the Crown is made in the statute enacting the Scottish equivalent smoking ban, which can into force before the Health Act 2006; and
- Although it would be desirable for the Crown to be bound by the smoking ban the effect of the legislation can be recognised by voluntary action by the government.
Although this decision has broadly followed the past test the court did ask the Government to consider revisiting Crown Immunity. The restatement of the test has meant that the requirement that an Act bind the Crown only when the purpose of the Act would be wholly frustrated has been modified. This should make it easier to argue that the Crown is bound by Acts of Parliament. This will particularly apply in cases where no specific provision is made for the Crown and the Act weighs in favour of the Crown being bound.
Philip Havers QC and Shaeen Rahman QC of One Crown Office Row appeared for the Appellant. They have not been involved in writing this post.
Hannah Wilce is currently a pupil at One Crown Office Row, seconded from HMRC.
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