Authored By: kiara motoomull
Facts:
This case involves Paul Black, an inmate at Her Majesty’s Prison Wymott, who has several health issues that are made worse by secondhand smoke. Black is a non-smoker and complains that prison staff and inmates frequently smoke in non-smoking areas of the prison. Black requested that a phone line be installed in the jail so prisoners could anonymously report smoking ban violations to local authorities. His request was initially granted, but the next day, the Secretary of State argued that the smoking ban established by the Health Act of 2006 does not apply to the Crown and therefore does not apply to the prison.
Issues
The central issue in this case is whether the Crown (meaning the British government) is bound by the smoking ban outlined in the Health Act of 2006. This issue arises because the appellant, Paul Black, argues that the smoking ban is not adequately enforced in the common areas of Her Majesty’s Prison Wymott, where he is serving an indeterminate sentence. Black asserts that both staff and prisoners often smoke in designated non-smoking areas. While the Secretary of State disputes these claims, the court proceedings do not aim to settle this specific factual dispute. Instead, the case focuses on whether the Crown is subject to the same smoking regulations as other entities.
The case also explores the following sub-issues:
- Whether the presence of provisions explicitly applying the Act to specific Crown properties, such as prisons, implies that the ban applies to all Crown properties. The Act includes specific provisions addressing smoking in prisons, which are primarily Crown property. This raises the question of whether including these provisions implies that the ban was intended to apply more broadly to the Crown.
- Whether the purpose and effectiveness of the smoking ban would be significantly undermined if it didn’t apply to Crown premises, the Act aims to protect workers and visitors from the dangers of secondhand smoke. If Crown premises were exempt, it would create a significant loophole in the law, denying protection to many people.
- The effects on Crown properties of the Act’s implementation processes. The Act relies on local government enforcement and criminal penalties. The use of these methods to Crown properties raises concerns regarding the role of local government in enforcing constraints on Crown holdings as well as the possibility of prosecuting government officials.
Laws applicable
The primary law applicable to this case is the Health Act of 2006. Specifically, Chapter 1 of Part 1 of the Act establishes the smoking ban in most enclosed public places and workplaces. The Act defines “smoke-free premises” and outlines provisions for exemptions, signage, offences for smoking in banned areas, offences for managers who fail to enforce the ban, enforcement by local authorities, and regulations for specific premises, including prisons.
The legal doctrine of Crown immunity is an essential point of disagreement in this case. This common law-derived theory has historically maintained that statute provisions do not bind the Crown, or the British government, unless they are expressly declared or implied by “necessary implication.”
The court analyses several case law precedents precedents related to Crown immunity, statutory interpretation, and whether the Crown was bound by the Health Act 2006 including:
- Province of Bombay v Municipal Corporation of the City of Bombay AC 58 and Lord Advocate v Dumbarton District Council 2 AC 580: It established the principle that the Crown can be bound by a statute through “necessary implication” if it is evident from the Act’s language that Parliament intended to include the Crown. They reaffirmed the “necessary implication” test for determining whether a statute binds the Crown. It also emphasised that the modern approach considers the Act’s purpose when assessing Parliament’s intent.
● R (Revenue and Customs Comrs) v Liverpool Coroner EWHC 1586 (Admin); QB 481: In this case, the court ruled that the Coroners Act of 2009 was binding on the Crown because its purpose of ensuring effective death investigations, including those involving state responsibility, would be hindered if the Crown were exempt.
The court also considers specific provisions in other Acts, such as the Health and Safety at Work Act 1974 and the Food Safety Act 1990, which explicitly address Crown application, arguing that the absence of such provisions in the Health Act 2006 suggests that Parliament did not intend to bind the Crown. The court contrasts this with section 23 of the Health Act 2006, which does explicitly apply provisions regarding controlled drugs to the Crown, further supporting the argument that the smoking ban was not meant to apply to the Crown. The court also references the Smoking, Health, and Social Care (Scotland) Act 2005, which includes a provision explicitly binding the Crown to the Scottish equivalent of the smoking ban.
Contentions raised by the appellant
While the appellant, Paul Black, argues that the Crown should be bound by the smoking ban in the Health Act of 2006 due to the Act’s language, context, and purpose, the court ultimately ruled that the Act does not bind the Crown. The court acknowledges the strength of the appellant’s arguments, particularly that the Act explicitly mentions prisons, which are predominantly Crown property, and that omitting Crown premises from the ban would leave many workers and visitors without legal protection from secondhand smoke. However, the court finds the language of the Act itself to be more compelling evidence that the Crown was not intended to be bound. The court emphasizes that the Act does not explicitly state that it applies to the Crown and notes that other Acts with similar structures and enforcement powers include specific provisions outlining how and to what extent they apply to the Crown. The court further highlights that the 2006 Act contains a provision explicitly applying a different section of the Act to the Crown, suggesting that had Parliament intended the smoking ban to apply to the Crown, it would have included similar language. Therefore, despite the potential desirability of applying the smoking ban to government premises, the court concludes that the absence of explicit language binding the Crown and the presence of provisions explicitly applying other sections of the Act to the Crown ultimately indicate that Parliament did not intend to bind the Crown with the smoking ban.
Contentions raised by the appellant
The respondent, the Secretary of State for Justice, contends that the Crown is not bound by the smoking ban established in the Health Act of 2006 because the Act does not explicitly state that it applies to the Crown. This argument rests on the principle of Crown immunity, which presumes that statutes do not apply to the Crown unless explicitly stated or implied by “necessary implication”. The respondent highlights that while the Act includes specific provisions for regulating smoking in prisons, these provisions do not necessarily imply a broader intention to bind the Crown. The respondent further emphasizes that other Acts, such as the Health and Safety at Work etc Act 1974 and the Food Safety Act 1990, include explicit provisions detailing how they apply to Crown properties, whereas the Health Act of 2006 does not. The respondent argues that the inclusion of such explicit provisions in other Acts, along with the presence of a provision explicitly applying a different section of the 2006 Act to the Crown, suggests that Parliament was aware of the need for clear language when binding the Crown and intentionally chose not to include such language regarding the smoking ban.
Judgement analysis
The respondent, the Secretary of State for Justice, contends that the Crown is not bound by the smoking ban established in the Health Act of 2006 because the Act does not explicitly state that it applies to the Crown. This argument rests on the principle of Crown immunity, which presumes that statutes do not apply to the Crown unless explicitly stated or implied by “necessary implication”. The respondent highlights that while the Act includes specific provisions for regulating smoking in prisons, these provisions do not necessarily imply a broader intention to bind the Crown. The respondent further emphasizes that other Acts, such as the Health and Safety at Work Act of 1974 and the Food Safety Act of 1990, include explicit provisions detailing how they apply to Crown properties, whereas the Health Act of 2006 does not. The respondent argues that the inclusion of such explicit provisions in other
Acts, along with the presence of a provision explicitly applying a different section of the 2006 Act to the Crown, suggests that Parliament was aware of the need for precise language when binding the Crown and intentionally chose not to include such language regarding the smoking ban.
References
Province of Bombay v Municipal Corporation of the City of Bombay [1947] AC 58.
Lord Advocate v Dumbarton District Council 2 [1990] AC 580
R (Revenue and Customs Comrs) v Liverpool Coroner EWHC [1586] (Admin); QB 481.
Health Act 2006 s23
Health and Safety at Work etc Act 1974 s48
Coroners Act 2009
