Secretary of State for Justice v Black

The Crown is not bound by a statute unless expressly bound or bound by necessary implication. Necessary implication is a strict test. It is not established merely because applying the statute to the Crown would be desirable, reasonable, efficient or beneficial to the public. The statutory purpose must be wholly frustrated without Crown application, assessed in light of the expectation that the Crown will act responsibly in the public interest, subject to judicial review. Expressly binding the Crown in one part of an Act, while omitting equivalent wording elsewhere, is a powerful contextual indicator. A reference to prisons in an exemption power does not overcome that inference. Applying these principles, Part 1 of the Health Act 2006 did not bind the Crown.

Paul Black, detained at HMP Wymott, challenged the Secretary of State’s refusal to provide confidential and anonymous access to the NHS Smoke-Free Compliance Line. He argued that the Secretary of State had erred in concluding that Chapter 1 of Part 1 of the Health Act 2006 did not bind the Crown and that the prison therefore had no statutory obligation to implement the smoking ban.

Singh J held that the Crown was bound by necessary implication and quashed the decision. The Secretary of State appealed. The central issue was whether the smoking prohibitions and enforcement provisions in Part 1 applied to Crown premises, particularly a state-run prison.

Appeal allowed. The Master of the Rolls gave the judgment of the court. McCombe LJ and David Richards LJ agreed.

1. The established rule is that the Crown is not bound by legislation unless the statute expressly says so or binding by necessary implication is required. The test is strict. It is insufficient that Crown application would be desirable, reasonable, efficient or consistent with the public good. The court must identify an intention to bind the Crown from the statutory terms. The authorities, including Province of Bombay v Municipal Corporation of the City of Bombay [1947] AC 58 and Lord Advocate v Dunbarton District Council [1990] 2 AC 580, did not permit the test to be diluted.
2. Necessary implication may arise where the statutory purpose would be wholly frustrated without Crown application. In applying that test, the court gives substantial weight to the expectation that the Crown will act responsibly in the public interest and comply with relevant policies, subject to judicial review. The greater effectiveness of statutory duties backed by criminal sanctions did not itself establish whole frustration.
3. The purpose of Part 1 was not to make every premise smoke-free. Sections 2 and 3 defined the scope of smoke-free premises and permitted wide exemptions. The background material also contemplated consultation about extending restrictions to establishments such as prisons. Excluding Crown premises therefore did not wholly frustrate the statutory purpose.
4. Section 23 of the Health Act 2006 was a powerful textual indicator. It expressly stated that Chapter 1 of Part 3 bound the Crown and specified the consequences of contravention, including the absence of criminal liability. Part 1 contained no equivalent provision. If Part 1 bound the Crown, its criminal sanctions would apply, creating an unexplained disparity. This strongly indicated that Part 1 was not intended to bind the Crown.
5. The references to prisons in section 3(2) and regulation 5(2)(c) of the Smoke-free (Exemptions and Vehicles) Regulations 2007 did not overcome the strict rule or the significance of section 23. R (Revenue and Customs Commissioners) v Liverpool Coroner [2015] QB 481 was distinguishable because it concerned the distinct context of the state’s procedural obligations under article 2 of the Convention.

The necessary implication test was not satisfied. The High Court’s decision was reversed and the appeal was allowed.

• Court of Appeal (Civil Division): In [2016] EWCA Civ 125, the appeal was allowed.
• High Court: Singh J held that Chapter 1 of Part 1 of the Health Act 2006 bound the Crown by necessary implication and quashed the Secretary of State’s decision.