The appellant was a serving prisoner at a state-run prison. He was a non-smoker and suffered from a number of health problems, which were exacerbated by tobacco smoke, including hypertension and coronary heart disease.

R (on the application of Black) v Secretary of State for Justice. 
Supreme Court: Lady Hale P, Lord Mance DP, Lord Kerr, Lord Hughes and Lord Lloyd-Jones SCJJ

19 December 2017

Prison – Prison conditions – Smoking

The appellant complained about his exposure to second-hand tobacco smoke in the common parts of the prison. He applied for judicial review to challenge the respondent Secretary of State’s refusal to provide confidential and anonymous access to the NHS Smoke-free Compliance Line (SFCL) to prisoners. The SFCL enabled prisoners to report breaches of the prohibition of smoking in most enclosed public places and workplaces (the smoking ban) to the local authority charged with enforcing it, provided that the smoking ban applied to Crown premises. The judicial review challenge was successful. The judge held that the Health Act 2006 (HA 2006), which contained the smoking ban, bound the Crown and, accordingly, he quashed the Secretary of State’s decision. The Court of Appeal, Civil Division, allowed the Secretary of State’s appeal, holding that HA 2006 did not bind the Crown. The appellant appealed to the Supreme Court.

Appeal dismissed.

Issues and decisions

Whether the Crown was bound by the smoking ban in HA 2006 Pt 1 Ch 1.

Decisions of the Supreme Court, or any court, generally operated retrospectively to alter the previous understanding of the law. It might be possible for the court to declare that a new understanding of the law would operate only prospectively. However, such a course would be wholly exceptional.

The classic and conventional statement of principle was that a statutory provision did not bind the Crown, except by express words or necessary implication. That was not an immunity from liability, strictly so-called, but a rule of statutory interpretation. The goal of all statutory interpretation was to discover the intention of the legislation. That intention was to be gathered from the words used by Parliament, considered in the light of their context and their purpose. In considering the intention of the legislation, it was not enough that it was intended for the public good or that it would be even more beneficial for the public if the Crown were bound. However, it was not necessary that the purpose of the legislation would be ‘wholly frustrated’ if the Crown were not bound. In considering whether the purpose of HA 2006 could be achieved without the Crown being bound, it was permissible to consider the extent to which the Crown was likely voluntarily to take action to achieve it. Inaction could not be assumed. It might be that HA 2006’s purpose could as well be achieved by the Crown exercising its powers properly and in the public interest. However, if it could not, that was a factor to be taken into account in determining the intention of the legislation (see [22], [35], [36] of the judgment).

In the present case, where there was a presumption that Acts of Parliament only bound the Crown by express words or necessary implication, and where a case had not been made for the court to declare a new understanding of the law, the court would decline to abolish the rule or reverse that presumption, although Parliament, perhaps with the assistance of the Law Commission, should give careful consideration to the merits of doing so.

The test to be applied in the present case was whether, in the light of the words used, their context and the purpose of the legislation, Parliament had to have meant the Crown to be bound by the smoking ban in HA 2006. Applying that test to the facts, notwithstanding that some strong points could be made in favour of the conclusion that Parliament had meant the Crown to be bound by the smoking ban, there were powerful indicators in the language of HA 2006 itself that the Crown was not to be bound by it. First and foremost, it did not say so and it would have been easy enough so to do. Second, in Acts with comparable structures and enforcement powers, there were provisions dealing expressly with exactly how and to what extent HA 2006 was to apply to the Crown. A good example was s 48 of the Health and Safety at Work etc Act 1974 (HSWA 1974). Further, HA 2006 contained just such a provision in another part of the Act dealing with the supervision of management and use of controlled drugs. Furthermore, virtually identical provision had been made in the Scottish equivalent to the smoking ban contained in HA 2006 Pt 1 Ch 1, which preceded that Act.

Had Parliament intended HA 2006 Pt 1 Ch 1 to bind the Crown, nothing would have been easier than to insert such a provision into that part of the Act. It would have made clear who could be prosecuted for the offences created. While it might well be thought desirable if the smoking ban did bind the Crown, the legislation was quite workable without doing so (see [35], [37], [38], [43]-[50], of the judgment).

Gorton Local Board v Prison Comrs [1904] 2 KB 165n considered; A-G v Hancock [1940] 1 All ER 32 considered; A-G v Randall [1944] 2 All ER 179 considered; Bombay Province v Bombay Municipal Corpn [1947] AC 58 considered; BBC v Johns (Inspector of Taxes) [1964] 1 All ER 923 considered; Lord Advocate v Dumbarton District Council [1990] 1 All ER 1 considered; R (on the application of Morgan Grenfell & Co Ltd) v Special Comr [2002] 1 All ER 776 considered; Spectrum Plus Ltd, Re; National Westminster Bank plc v Spectrum Plus Ltd [2005] All ER (D) 368 (Jun) considered; R (Revenue and Customs Comrs) v Liverpool Coroner (Associated of Personal Injury Lawyers intervening) [2014] EWHC 1586 (Admin) considered.

Decision ofthe Court of Appeal, Civil Division [2016] All ER (D) 82 (Mar) affirmed.

Philip Havers QC and Shaheen Rahman QC (instructed by Leigh Day) for the appellant.

James Eadie QC and David Pievsky (instructed by the Government Legal Department) for the Secretary of State.

Carla Dougan-Bacchus, Barrister.

The Crown was not bound by the prohibition of smoking in most enclosed public places and workplaces (the smoking ban), contained in Ch 1 of Pt 1 of the Health Act 2006 (HA 2006). The Supreme Court so ruled in dismissing the appellant prisoner’s appeal against the Court of Appeal, Civil Division’s decision, in favour of the Secretary of State, that the Crown was not bound by the smoking ban.