Black, R (On the Application Of) v Secretary of State for Justice

The Crown is bound by a statute where it is expressly named or where binding it follows by necessary implication. The question is whether the statutory purpose, ascertained from the statute read in context, would otherwise be wholly frustrated. A general public benefit or the fact that legislation would operate more efficiently if the Crown were bound is insufficient.

Applying that test, the smoke-free provisions in Chapter 1 of Part 1 of the Health Act 2006 bind the Crown and apply to all prisons, including state prisons. The absence of an express provision binding the Crown does not prevent that conclusion. The claim nevertheless failed on the Convention rights and Prison Rules grounds. The Secretary of State was required to reconsider the helpline decision according to law.

The claimant was a serving prisoner who suffered serious health problems and was concerned about exposure to second-hand smoke. He sought confidential and anonymous access for all prisoners to an NHS smoke-free compliance helpline.

The Secretary of State had proceeded on the view that Chapter 1 of Part 1 of the Health Act 2006 did not bind the Crown and therefore did not apply to state prisons. The claim also relied on Articles 8 and 14 of the Convention and Rules 20(1) and 34(2) of the Prison Rules 1999. The central issue was whether the Act applied to state prisons and, if so, what consequences followed for the requested helpline access.

1. Applicability of the Health Act 2006. The claim succeeded on its principal ground. The established rule is that the Crown is not bound by legislation unless expressly named or bound by necessary implication. The court must ascertain Parliament’s true intention from the statutory language understood in context. A statute binds the Crown by necessary implication where its legislative purpose would otherwise be wholly frustrated.
2. Chapter 1 of Part 1 of the Health Act 2006 was intended to introduce a general prohibition on smoking in enclosed public places and workplaces, subject to specified exemptions. Section 3(2), and Regulation 5(2)(c) of the Smoke-Free (Exemptions and Vehicles) Regulations 2007, expressly contemplated exemptions for designated rooms in prisons. Neither instrument distinguished between private and state prisons. The statutory purpose would be wholly frustrated if Crown premises were excluded. The Act therefore binds the Crown and applies to state prisons.
3. The express provision in section 23 binding the Crown in relation to Chapter 1 of Part 3 did not produce a different result. It specified additional consequences for that Chapter and did not displace the necessary-implication test for Part 1. Government statements about Crown immunity could not determine Parliament’s intention.
4. Convention rights. The wider claim that Article 8 required effective protection from second-hand smoke in communal prison areas failed on the written evidence. The narrower claim that Articles 8 and 14 required confidential and anonymous access to the helpline had no supporting authority. The court therefore rejected both Convention arguments.
5. Prison Rules. Reliance on legitimate expectation was misplaced because the case concerned an alleged breach of a rule of law, not a policy. Rule 20(1) was expressed at a high level and did not require the particular form of helpline access sought. Any argument under Rule 34(2) also failed.
6. The Secretary of State had made the helpline decision on an erroneous understanding of the Act. He was expected to reconsider that decision in accordance with law. The court did not determine what outcome reconsideration should produce, noting that prison security and order might justify restrictions and that Article 8(2) might be relevant.

First-instance judicial review. Permission was granted by Foskett J on 1 July 2014. The Administrative Court allowed the principal challenge but rejected the Convention rights and Prison Rules grounds.