R (on the application of Black) (Appellant) v Secretary of State for Justice (Respondent) - (19 Dec 2017)

A statutory provision does not bind the Crown save by express words or “necessary implication”

Civil

The issue in present case is whether 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”). The issue comes before present Court because a prisoner, who is serving an indeterminate sentence at Her Majesty’s Prison Wymott and a non-smoker with a number of health problems, complains that, the ban is not being properly enforced in the common parts of the prison. But the same issue affects the myriad of premises which are occupied by central government Departments, the civil servants and other people who work there, and the members of the public who visit the premises for business or pleasure. They need to know whether the smoking ban which applies to those premises is simply an instruction from the managers or whether it is backed up by criminal sanctions and other enforcement measures having the force of law.

The Appellant suffers from a number of health problems which are exacerbated by tobacco smoke, including hypertension and coronary heart disease. He has a history of myocardial infarction and required surgical coronary intervention in 2009. He complains about his exposure to second-hand tobacco smoke in the common parts of the prison.

The classic and conventional statement of principle is that, a statutory provision does not bind the Crown save by express words or “necessary implication”. Any signs displayed cannot say that, smoking is “against the law”. The ban is not backed up by criminal sanctions against smokers or managers. It is not backed up by the enforcement powers of environmental health officers. The only method of challenging a refusal to impose or to enforce a smoking ban would be to bring judicial review proceedings. It is unrealistic to expect workers and members of the public who are adversely affected by exposure to second-hand smoke in government premises to bring judicial review proceedings. These are expensive, time-consuming and inaccessible to most people, nor will they necessarily produce a remedy which is anything like as effective as the statutory enforcement process.

It is not an objection to the Crown being bound that the Act imposes criminal liability. This was not mentioned as an objection in the leading English and Scottish cases. In practice, apart from the smokers themselves, it would be the individual managers of the premises in question who might be prosecuted, rather than the relevant Secretary of State. Nor, in principle, is it an objection that, enforcement powers are given to local environmental health officers. The similar enforcement provisions in the Health and Safety at Work etc Act 1974 and in the Food Safety Act 1990 do apply to the Crown. There is nothing unconstitutional about local government officers, or officers of the Health and Safety Executive, enforcing obligations intended for the protection of workers or the public in government premises.

The strongest indication in the language of the Act that, the ban is intended to apply to government premises is the express mention of prisons in Section 3(2) of Act. At the time of its enactment, there were only ten private prisons. All the rest were state run and the great majority still are. No sensible reason has ever been given for distinguishing between state and private prisons. Any practical problems of enforcement by environmental health officers are as great in private prisons as they are in public prisons. Prisoners in public prisons are in just as much need of protection from second-hand smoke, and discouragement from smoking, as are prisoners in private prisons.

There are powerful indicators in the language of the Act itself that, the Crown was not to be bound by the smoking ban. First and foremost, it does not say so and it would have been easy enough so to do. In Acts with comparable structures and enforcement powers, there are provisions dealing expressly with exactly how and to what extent the Act is to apply to the Crown.

There is a presumption that, Acts of Parliament only bind the Crown by express words or necessary implication. Necessary implication entails that Parliament must have meant to bind the Crown. The fact that where Parliament did mean to do so in this Act, it said so, and made tailored provision accordingly. Appeal dismissed.

Tags : SMOKING BAN PROVISION