R v Secretary of State for Justice

A statute binds the Crown only through express words or necessary implication. Necessary implication asks whether, considering the statutory language, context and purpose, Parliament must have intended to bind the Crown. A beneficial purpose alone is insufficient, but that purpose need not be wholly frustrated without Crown application. The capacity of the Crown to achieve it voluntarily is relevant.

Chapter 1 of Part 1 of the Health Act 2006 did not bind the Crown. Although statutory enforcement offered materially greater protection against second-hand smoke, the absence of an express Crown provision was decisive when the Act contained a tailored Crown provision elsewhere and comparable legislation used express wording. The smoking ban remained workable through voluntary Crown action.

The appellant was a non-smoking prisoner with health conditions aggravated by tobacco smoke. He alleged exposure to second-hand smoke in the common parts of HMP Wymott and sought confidential access to the NHS Smoke-free Compliance Line. The Secretary of State refused on the ground that Part 1 of the Health Act 2006 did not bind the Crown.

Singh J allowed the judicial review claim and quashed the decision: [2015] EWHC 528 (Admin); [2015] 1 WLR 3963. The Court of Appeal reversed that decision: [2016] EWCA Civ 125; [2016] QB 1060. The central issue before the Supreme Court was whether the statutory smoking ban applied to Crown premises, including state-run prisons.

1. Disposition. The Supreme Court unanimously dismissed the appeal. Lady Hale delivered the judgment, with which Lord Mance, Lord Kerr, Lord Hughes and Lord Lloyd-Jones agreed. Chapter 1 of Part 1 of the Health Act 2006 did not bind the Crown.

2. The established rule was that the Crown is bound by a statutory provision only through express words or necessary implication. This is a rule of statutory interpretation, rather than an immunity from liability. The Court declined to abolish or reverse the presumption. The rule had long informed the drafting and enactment of legislation, and no case had been made for the wholly exceptional step of prospective-only alteration.

3. Necessary implication requires the court to ask whether, in the light of the statutory words, their context and the legislation's purpose, Parliament must have intended to bind the Crown. It is insufficient that the legislation promotes the public good or would operate more beneficially if the Crown were bound. Conversely, the purpose need not be wholly frustrated without Crown application. The formulation in R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2002] UKHL 21 had to be modified because statutory purpose, as well as express provisions and context, was relevant. The court may also consider whether proper voluntary Crown action can achieve the statutory purpose.

4. There were strong indications favouring Crown application. The ban protected workers and visitors from second-hand smoke; statutory offences and local-authority enforcement were materially more effective than a voluntary ban; and section 3(2) expressly mentioned prisons. Neither criminal liability nor enforcement by local environmental health officers was, in principle, an objection to binding the Crown.

   Those considerations were outweighed by the statutory structure. The smoking provisions contained no express Crown clause. Comparable legislation contained tailored Crown provisions, and section 23 of the 2006 Act expressly bound the Crown in another Part while adapting criminal liability and enforcement. The equivalent Scottish smoking legislation did the same. These provisions demonstrated how Parliament legislated when it intended to bind the Crown.

5. The smoking ban remained workable without Crown application. Unlike the legislation considered in R (Revenue and Customs Comrs) v Liverpool Coroner [2014] EWHC 1586 (Admin), no major purpose of the 2006 Act would remain unfulfilled. Voluntary Crown action could substantially fill the gap. Parliament's express treatment of the Crown elsewhere in the same Act was therefore conclusive.

1. United Kingdom Supreme Court: In R v Secretary of State for Justice [2017] UKSC 81, the court unanimously dismissed the prisoner's appeal and upheld the conclusion that the statutory smoking ban did not bind the Crown.
2. Court of Appeal: The Secretary of State's appeal was allowed. The court held that the Health Act 2006 did not bind the Crown: [2016] EWCA Civ 125; [2016] QB 1060.
3. High Court, Administrative Court: Singh J allowed the prisoner's judicial review claim, held that the Act bound the Crown and quashed the Secretary of State's decision: [2015] EWHC 528 (Admin); [2015] 1 WLR 3963.