R (Black) v Secretary of State for Justice

The Supreme Court considered whether the prohibition on smoking in most enclosed public places and workplaces in Chapter 1 of Part 1 of the Health Act 2006 binds the Crown. The Court reaffirmed the long-established presumption that statutes do not bind the Crown except by express words or necessary implication and set out that the necessary-implication inquiry must focus on the words, their context and the statutory purpose. The Court accepted that purpose and the likelihood of voluntary Crown cooperation are relevant but concluded that Parliament had not manifested an intention to bind the Crown in Part 1: where it intended the Crown to be bound it said so expressly (see section 23 in Part 3 and the Scottish equivalent). Because the 2006 Act contains tailored Crown-application provisions elsewhere and because the Act is workable without binding the Crown, the appeal failed.

Background and facts. The appellant is a non-smoking prisoner serving an indeterminate sentence at HMP Wymott who suffers from significant health problems exacerbated by second-hand smoke. He complained about exposure to tobacco smoke in the common parts of the prison and sought confidential access for prisoners to the National Health Service Smoke-free Compliance Line (SFCL) so breaches of the smoking ban could be reported to enforcement authorities.

Procedural history. The claim began by way of pre-action correspondence and judicial review. Singh J (High Court) held that the Health Act 2006 bound the Crown and quashed the Secretary of State’s refusal to provide SFCL access: [2015] EWHC 528 (Admin). The Court of Appeal reversed that decision, holding the Act did not bind the Crown: [2016] EWCA Civ 125; the appellant appealed to the Supreme Court.

Nature of the application. The appellant sought judicial review relief challenging the Secretary of State’s view that Part 1 of the Health Act 2006 does not bind the Crown and sought enforcement-access (via SFCL) as part of ensuring the statutory smoking ban is effective in the prison setting.

Issues for decision.

• Whether the Crown is bound by Chapter 1 of Part 1 of the Health Act 2006 (the smoking ban).
• What test should be applied to determine when statutes bind the Crown and whether that test should be modified.
• Whether the words, context and purpose of the Health Act 2006 show Parliament intended the Crown to be bound.

Reasoning and subsidiary findings. The Court declined to overturn the established presumption that statutes bind the Crown only by express words or necessary implication but clarified the necessary-implication inquiry to require consideration of words, context and purpose. The Court accepted Liverpool Coroner as correctly decided and allowed consideration of whether the statute’s purpose would be frustrated if the Crown were not bound; the purpose need not be wholly frustrated for necessary implication to arise. The Court emphasised that Parliament expressly provided for Crown application in comparable statutes and in another part of the same Act (section 23) and in the Scottish statute. That express provision in related contexts was a strong indicator that Parliament did not intend Part 1 to bind the Crown. The Court also noted practical differences between voluntary rules and statutory prohibitions (criminal sanctions, statutory signage, enforcement by local environmental health officers) and concluded Parliament could be taken to have left Crown premises to be regulated by voluntary measures if it did not expressly or necessarily imply binding the Crown. The appeal was dismissed.

Wider context. The Court declined to reform the presumption itself and urged Parliament to consider legislative reform if greater clarity is required. The decision affects government-occupied premises, prisons and other Crown-imperilled settings where the statutory smoking ban’s force depends on whether the Crown is bound.

Appeal dismissed. The Supreme Court held that statutes bind the Crown only by express words or necessary implication. That inquiry must focus on the statutory words, their context and purpose. Applying that test, Chapter 1 of Part 1 of the Health Act 2006 was not shown to bind the Crown: Parliament had provided express Crown-application provisions in comparable statutes and elsewhere in the 2006 Act (section 23) and it was not necessary to infer that Parliament intended Part 1 to bind the Crown. The Secretary of State's view that the Act did not bind the Crown was therefore upheld.

High Court (Administrative Court): Singh J held the Act bound the Crown, quashing the Secretary of State's decision ([2015] EWHC 528 (Admin); [2015] 1 WLR 3963). Court of Appeal allowed the Secretary of State, holding the Act did not bind the Crown ([2016] EWCA Civ 125; [2016] QB 1060). Appeal to the Supreme Court dismissed ([2017] UKSC 81).