R v Secretary of State for Justice

The issue in this case is whether the Crown is bound by the prohibition of smoking in most enclosed public places and workplaces, contained in Chapter 1 of Part 1 of the Health Act 2006 (for shorthand, I shall call its provisions “the smoking ban”). The issue comes before this Court because a prisoner, who is serving an indeterminate sentence at Her Majesty’s Prison Wymott and a non-smoker with a number of health problems, complains that the ban is not being properly enforced in the common parts of the prison. But the same issue affects the myriad of premises which are occupied by central government departments, the civil servants and other people who work there, and the members of the public who visit the premises for business or pleasure. They need to know whether the smoking ban which applies to those premises is simply an instruction from the managers or whether it is backed up by criminal sanctions and other enforcement measures having the force of law.

The appellant suffers from a number of health problems which are exacerbated by tobacco smoke, including hypertension and coronary heart disease. He has a history of myocardial infarction and required surgical coronary intervention in 2009. He complains about his exposure to second-hand tobacco smoke in the common parts of the prison. He alleges that both staff and prisoners often smoke in areas of the prison where smoking is prohibited. The Secretary of State disputes this, but it is not the business of these proceedings to resolve that factual dispute.

In September 2013, the appellant asked that the National Health Service Smoke-free Compliance Line (SFCL) be put on the prison phone system for all prisoners. This would enable them to report breaches of the smoking ban to the local authorities charged with enforcing it. He followed this up with a pre-action protocol letter as a prelude to issuing judicial review proceedings. At first, this brought him the result he was looking for - on 13 January 2014, the prison issued instructions that arrangements be made for him to have access to the SFCL on his individual phone account. By itself, that might be thought to indicate that the prison thought that the smoking ban applied to them, for what would otherwise be the point of relaxing the general ban on adding Freephone numbers to prisoners’ mobile phones, if not to enable them to alert the enforcement authority of possible breaches of the ban?

However, that is unlikely to be the case, because the very next day the Secretary of State stated in a letter, in answer to the pre-action protocol letter, that

It has, of course, been known for a long time that smoking tobacco is hazardous to the health of the smoker. Recognition of the dangers of passive smoking is more recent. An account of the genesis of the smoking ban, in the context of hospitals, including mental health units, can be found in Appendix A to the judgment of the Court of Appeal in R (G) v Nottinghamshire Healthcare NHS Trust [2009] EWCA Civ 795; [2010] PTSR 674, an unsuccessful challenge to the smoking ban at Rampton Hospital on human rights grounds. Briefly, in 1998, Smoking kills: A White Paper on Tobacco (Cm 4177) estimated that smoking in the United Kingdom caused 46,500 deaths from cancer and 40,300 deaths from all circulatory diseases. Smokers who smoked regularly and then died of smoking-related diseases lost on average 16 years from their life expectancy when compared with non-smokers. However, at that time it was thought that the case for legal action to restrict smoking was not sufficiently strong.

In reports of 1998 and 2004, the Scientific Committee on Tobacco and Health concluded that exposure to second-hand smoking (SHS) was a cause of a range of serious medical conditions and recommended restrictions on smoking in public places and work-places so as to protect non-smokers from SHS. The overall increased risk of lung cancer for non-smokers exposed to SHS was put at 24%. In December 2005, the House of Commons Health Committee reported that SHS caused at least 12,000 deaths a year in the United Kingdom of which a minimum of 500 were due to the presence of smoke in the workplace (First Report Session 2005-2006, Smoking in Public Places, HC 485-I, para 17). One year after the smoking ban came into force, the Department of Health published a report, Smoke-free England - one year on (2008), which stated:

In his foreword to that Report, Sir Liam Donaldson, Chief Medical Officer, recalled that he had first called for public places and workplaces to made smoke-free in his 2002 Annual Report, which was met with considerable hostility as well as support. The following year, his 2003 Annual Report set out the economic case for smoke-free legislation, and recommended that smoke-free workplaces and smoke-free enclosed public places should be created as a priority through legislation.

This recommendation was reinforced by the international obligations undertaken by the United Kingdom. In 2003, the World Health Organisation published its Framework Convention on Tobacco Control . The United Kingdom ratified this in December 2004 and it came into force on 27 February 2005. Article 8, headed Protection from exposure to tobacco smoke , provides:

In 2004, after extensive public consultation, the Department of Health published a White Paper Choosing Health - Making Healthy Choices Easier (Cm 6374), canvassing a number of health-related initiatives. Among these, reducing the number of people who smoke was a priority:

Hence, in paragraph 76 of the paper, the Government explained its policy thus:

all enclosed public places and workplaces (other than licensed premises which are dealt with below) will be smoke-free.”

The rest of paragraph 76 was devoted to restaurants, pubs, clubs and other licensed premises. Paragraph 77 continued:

by the end of 2006, all government departments and the NHS will be smoke-free;

by the end of 2007, all enclosed public places and workplaces, other than licensed premises (and those specifically exempted), will, subject to legislation, be smoke-free;

by the end of 2008 arrangements for licensed premises will be in place.

It is noteworthy that, although the government contemplated bringing in a smoking ban in government departments and the NHS before other premises, nowhere is it stated that any proposed legislation would not cover government departments. On the contrary, the reverse is suggested by including prisons, the overwhelming majority of which are Crown property, amongst the establishments for which special arrangements would be needed.

The Queen’s Speech on 17 May 2005 announced that legislation to restrict smoking in enclosed public places and workplaces would be introduced in that session. In June 2005, the Government published its Consultation on the Smoke-free Elements of the Health Improvement and Protection Bill, covering matters such as definitions, exceptions, signage, offences and enforcement. Paragraph 1 announced that the aim of the policy was to make “almost all enclosed public places and workplaces smoke-free”. Only a limited number of exceptions would be permitted in regulations. Once again, there is no hint that the legislation would not bind the Crown or apply to central government departments. Exceptions were canvassed for establishments where people lived, and “prisons and other places of detention” were listed.

The Bill was published in October 2005 and the House of Commons Health Committee conducted an extensive enquiry during October and November. Their Report, Smoking in Public Places (see above), was published in December. It commented, at para 62:

Section 2(1) of the 2006 Act defines “smoke-free premises”:

Section 3(1) provides that the “appropriate national authority” (the Secretary of State in England and, as originally enacted, the National Assembly in Wales) may make regulations exempting specified premises, or areas within them, from being smoke-free. Section 3(2) provides that descriptions of premises which may be specified under section 3(1) include, in particular, “any premises where a person has his home … (including hotels, care homes, and prisons and other places where a person may be detained)”.

Section 4 allows the appropriate national authorities to designate, as smoke-free, premises which would not otherwise fall within section 2. Section 5 deals with vehicles. Section 6(1) imposes a duty on “any person who occupies or is concerned in the management of smoke-free premises” to make sure that the required no-smoking signs are displayed in compliance with the section. Failure to comply is an offence (section 6(5)), punishable with a fine on level 3, currently £1,000 (section 6(8); Smoke-free (Penalties and Discounted Amounts Regulations (SI 2007/764), regulation 2(1)), although there are various defences (section 6(6)). The prescribed no smoking signs are required to state “No smoking. It is against the law to smoke in these premises” (The Smoke-free (Signs) Regulations 2007 (SI 2007/923), regulation 2).

Section 7(2) makes it an offence to smoke in a smoke-free place, punishable with a fine on level 1, currently £200 (section 7(6) and SI 2007/764, regulation 2(2)). Section 8(4) makes it an offence, punishable by a fine on level 4, currently £2,500 (section 8(7) and SI 2007/764, regulation 2(3)), for “any person who controls or is concerned in the management of smoke-free premises” to fail to comply with the duty (in section 8(1)) to cause a person smoking there to stop smoking. Once again there are various defences (section 8(5)).

Section 10 deals with enforcement. The “appropriate national authority” designates the enforcement bodies; in England these are the local authorities with environmental health functions and their authorised officers are the local environmental health officers. The enforcement authority has a duty to enforce the ban (section 10(3)) and powers of entry to enable it to do so (Schedule 2). Obstructing its officers is an offence under section 11, carrying a maximum fine at level 3, currently £1,000 (section 11(1), (2), (3) and (4)).

While the Bill was going through Parliament, the Department of Health consulted on the proposed regulations: Smoke-free premises and vehicles: Consultation on proposed regulations to be made under powers in the Health Bill (July 2006). This made it clear that “there is no intention through smoke-free legislation to prevent individuals from smoking in areas of premises which are considered to be private residential space. Nevertheless, in certain types of residential accommodation, balance is needed between allowing people to smoke in their own residential spaces and protecting others from exposure to second-hand smoke, including the other people who call the premises home and the people who work there”. Among the premises listed where such a balance was needed were prisons (para 3.12). Once again, there was no suggestion in the Consultation that government premises would be exempt from the ban, and therefore that only private prisons would be included. Accordingly, the Smoke-free (Exemptions and Vehicles) Regulations 2007 (SI 2007/765), regulation 5, provide that the person in charge of such premises, including prisons, may designate bedrooms or smoking rooms as not smoke-free. Prisons are expressly exempt from the requirement that doors which open onto smoke-free premises must be automatically self-closing (regulation 5(3)(e)).

Not surprisingly, perhaps, Her Majesty’s Prison Service took the view that the smoking ban did apply to them. A Prison Service Instruction, Smoke-free Legislation: Prison Service Application (PSI 09/2007), dated 2 April 2007, was clearly drafted on the assumption that prisons were bound to comply with the legislation, as was the Foreword to a research study, Stop Smoking Support in Prisons (January 2007), signed by the Director of Prison Health at the Department of Health and the Deputy Director General of Her Majesty’s Prison Service.

The classic and conventional statement of principle is that a statutory provision does not bind the Crown save by express words or “necessary implication”. As authority for that proposition, it is not necessary to look further than two cases, one in the Judicial Committee of the Privy Council and one in the House of Lords.

In Province of Bombay v Municipal Corporation of the City of Bombay [1947] AC 58, the issue was whether an Act giving the municipality power to lay water mains for the purpose of water supply through, across or under any street and into, through or under any land in the city allowed it to lay a water main in a private road belong to the government. Lord du Parcq, giving the judgment of the Board, said this (at 61):

There being no express provision, the Board was concerned with necessary implication. They rejected the view of the Chief Justice that the necessary implication could be found if the law could not operate “efficiently and smoothly” if the Crown were not bound. This seemed to ignore the possibility that the legislature may have expected that the Crown would “co-operate with the corporation so far as its own duty to safeguard a wider public interest made co-operation possible and politic” (p 62). The Board also rejected the view, albeit supported by much earlier authority, that the Crown must be held to be bound by any statute enacted “for the public good”, because every statute must be supposed to be for the public good (p 63). Nevertheless the purpose was relevant:

The second case is Lord Advocate v Dumbarton District Council [1990] 2 AC 580, where Lord Keith of Kinkel, with whom the other members of the appellate committee agreed, dealt rather more comprehensively with the modern cases. The issue was whether the Ministry of Defence was entitled to cone off a section of the A814 road without the permission of the roads authority under the Roads (Scotland) Act 1984 or the local planning authority under the Town and Country Planning (Scotland) Act 1972. The first question was whether the law of Scotland was the same as the law of England in this respect. Before the Acts of Union, Scots law did not have the same presumption as English law, and there were Scottish cases suggesting that the rule was rather different there. Lord Keith held that there were no rational grounds for adopting a different approach to the construction of statutes in Scotland and in England and that the modern English approach should prevail (p 591).

He then reviewed most of the “modern” English authorities in detail, beginning with Gorton Local Board v Prison Comrs (Note), decided in 1887 but reported as a footnote to the report of Cooper v Hawkins [1904] 2 KB 164. In Gorton it was held that the Prison Commissioners were not bound by local by-laws made under the Public Health Act 1875, requiring the local authority to certify that newly built houses were fit for human habitation. In Cooper , it was held that vehicles driven by Crown servants on Crown business were not subject to the speed limits laid down by the local authority under the Locomotives Act 1865.

The next case was Attorney General v Hancock [1940] 1 KB 427, in which it was held that the Crown could enforce a debt for unpaid income tax without the leave of the court, not being bound by the provisions of the Courts (Emergency Powers) Act 1939, which prohibited enforcement without leave. (It is perhaps worth pointing out that a similar conclusion was reached in Attorney General v Edmunds (1870) 22 LTR 667 and Attorney General v Randall [1944] 1 KB 709, where it was held that the Debtors Act 1869 restriction on imprisonment for debt did not apply to debts owing to the Crown.)

Lord Keith then quoted from the Province of Bombay case, including the passage cited at para 23 above, and from the case of Madras Electric Supply Corporation Ltd v Boarland [1955] AC 667. This was not directly concerned with whether the statute in question bound the Crown, but with whether the Crown was a “person” for a particular purpose. While holding that the Crown was such a person, their Lordships reiterated the classic doctrine, Lord MacDermott and Lord Reid locating this as a rule of statutory construction rather than an aspect of the royal prerogative. Similarly in Ministry of Agriculture, Fisheries and Food v Jenkins [1963] 2 QB 317, it was held that the Crown was not bound by the Town and Country Planning Act 1947 to get planning permission for the afforestation of its land.

Finally, Lord Keith cited with approval the dictum of Diplock LJ in British Broadcasting Corpn v Johns [1965] Ch 32, at 78-79:

Lord Keith went on to consider in detail the language of the two statutes with which the House was concerned, before concluding that they did not bind the Crown. He returned, at the end of his speech, to the distinction drawn by the Lord President in that case, between actions which would otherwise have been lawful (and thus presumed not to be prohibited by the statute) and actions such as this interference with the highway (which was unlawful and thus presumed to be prohibited). He rejected this distinction as undesirable, requiring as it would a minute inquiry into the powers of the Crown in the particular context and involving a different construction of the same statute depending upon the outcome of that inquiry. He concluded thus, at 604:

The only other case which it is necessary to consider is R (Revenue and Customs Comrs) v Liverpool Coroner [2014] EWHC 1586 (Admin); [2015] QB 481. The issue was whether or not the Coroners Act 2009, and specifically the investigatory powers contained in Schedule 5, was binding on the Crown, so that the Commissioners were entitled and obliged to provide the coroner with historical occupational information for the purpose of investigating whether the deceased had died of an industrial disease, overriding their statutory duty of confidentiality. The Court held that the Act did bind the Crown, as it was intended to strengthen the powers of coroners and to enable them to conduct an effective investigation into deaths for which the state might bear some responsibility, as required by article 2 of the European Convention on Human Rights. That legislative purpose would be frustrated if it was not binding on the Crown. Mr James Eadie QC, for the Secretary of State in this case, accepts that the Liverpool Coroner’s case was rightly decided .

Mr Phillip Havers QC, for the appellant, urges one of three courses upon us, each of which would have the result that the smoking ban is binding on the Crown. In reverse order, these are (1) to revisit the rule itself; (2) to modify the rule; or (3) to apply the existing rule in such a way that the smoking ban binds the Crown.

Mr Havers points out that the rule has been subject to criticism from distinguished commentators, ranging from Glanville Williams, who called it “a gap made in the ‘rule of law’” (in Crown Proceedings, London, Stevens, 1948, at p 49); and Bennion on Statutory Interpretation, which describes insistence on necessary implication as “typical of the unrealistic attitude displayed by some judges in resisting implied meaning in statutes” (London, LexisNexis, 6th ed, Oliver Jones (ed), 2013, at p 181), to Paul Craig, who describes the present law as unsatisfactory, unclear and the product of a misinterpretation of earlier authority (in Administrative Law, London, Sweet & Maxwell, 8th ed (2016), at para 29.003). In his view, careful thought is not always given to whether the Crown should be bound, which may be overlooked or receive scant attention when legislation is drafted.

Two solutions have been canvassed. One, favoured by Glanville Williams and Paul Craig, is to reverse the presumption, so that the Crown is bound unless expressly excluded from some or all of the Act’s provisions. This would have the merit of clarity and certainty. It would force the Crown to think carefully about whether and to what extent it should be bound and to justify any exemption. The other, favoured by Bennion, is that there should be a single test: what did Parliament intend? In other words, there would be no presumption either way and no requirement that any implication be “necessary”. This would be to apply the general rule of statutory interpretation to the question, but it would not produce the clarity and certainty of the alternative suggestion.

It is easy to see the merits of the solution put forward by Glanville Williams and Paul Craig. However, the problem for this Court in adopting either of the solutions proposed is that the presumption, as stated in the Bombay , Madras and above all the Dumbarton cases, is so well established in modern times that many, many statutes will have been drafted and passed on the basis that the Crown is not bound except by express words or necessary implication. Decisions of this Court, or indeed any court, generally operate retrospectively to alter the previous understanding of the law. It may be possible for the Court to declare that a new understanding of the law will operate only prospectively: the possibility was canvassed at length in In re Spectrum Plus Ltd [2005] UKHL 41; [2005] 2 AC 680. But such a course would be wholly exceptional and the case for doing so has certainly not been made before us. I would therefore decline to abolish the rule or reverse the presumption, although I would urge Parliament, perhaps with the assistance of the Law Commission, to give careful consideration to the merits of doing so.

It is certainly open to this Court to clarify the test, even if such clarification has the effect of modifying the understanding which some, at least, may have had of it. We can begin with some simple propositions:

In my view, that is all that need be said. It is neither necessary nor desirable to add further glosses to the test, or to characterise it by adjectives such as “strict”. The question is whether, in the light of the words used, their context and the purpose of the legislation, Parliament must have meant the Crown to be bound.

Some strong points can be made in favour of the conclusion that Parliament did indeed mean the Crown to be bound by the smoking ban. Although the government announced an intention to bring in a ban before the legislation was passed, there is no hint in the government publications leading up to the adoption of the policy that the Crown would not be bound by the legislation when it came into force (other than the exchange with the Health Committee referred to at para 14 above). If this had been made clear, one might have expected the anti-smoking campaigners and the trade unions and staff associations protecting the interests of civil servants and others working for the government to say something about it. The ban was intended to protect workers and visitors from the known dangers of being exposed to second-hand smoke, when reliance on voluntary measures had not proved effective, and omitting Crown premises would deny statutory protection to large numbers of people.

There are very significant differences between a smoking ban voluntarily imposed by an occupier or employer and the smoking ban imposed by the Act:

None of this applies to a ban voluntarily imposed in government premises. Any signs displayed cannot say that smoking is “against the law”. The ban is not backed up by criminal sanctions against smokers or managers. It is not backed up by the enforcement powers of environmental health officers. The only method of challenging a refusal to impose or to enforce a smoking ban would be to bring judicial review proceedings. It is unrealistic to expect workers and members of the public who are adversely affected by exposure to second-hand smoke in government premises to bring judicial review proceedings. These are expensive, time-consuming and inaccessible to most people, nor will they necessarily produce a remedy which is anything like as effective as the statutory enforcement process.

In principle, it is not an objection to the Crown being bound that the Act imposes criminal liability. This was not mentioned as an objection in the leading English and Scottish cases. In practice, apart from the smokers themselves, it would be the individual managers of the premises in question who might be prosecuted, rather than the relevant Secretary of State. Nor, in principle, is it an objection that enforcement powers are given to local environmental health officers. The similar enforcement provisions in the Health and Safety at Work etc Act 1974 and in the Food Safety Act 1990 do apply to the Crown. There is nothing unconstitutional about local government officers, or officers of the Health and Safety Executive, enforcing obligations intended for the protection of workers or the public in government premises.

The strongest indication in the language of the Act that the ban is intended to apply to government premises is the express mention of prisons in section 3(2). At the time of its enactment, there were only ten private prisons. All the rest were state run and the great majority still are. No sensible reason has ever been given for distinguishing between state and private prisons. Any practical problems of enforcement by environmental health officers are as great in private prisons as they are in public prisons. Prisoners in public prisons are in just as much need of protection from second-hand smoke, and discouragement from smoking, as are prisoners in private prisons. Her Majesty’s Prison Service certainly thought that the ban would apply to them and that view must have been shared by the Department of Health’s Director of Prison Health, who signed the Foreword to the research study, Stop Smoking Support in HM Prisons: the Impact of Nicotine Replacement Therapy (January, 2007).

Against all that, there are powerful indicators in the language of the Act itself that the Crown was not to be bound by the smoking ban. First and foremost, it does not say so and it would have been easy enough so to do.

Secondly, in Acts with comparable structures and enforcement powers, there are provisions dealing expressly with exactly how and to what extent the Act is to apply to the Crown. A good example is section 48 of the Health and Safety at Work etc Act 1974:

To very similar effect is section 54 of the Food Safety Act 1990. Such provisions enable the offence-creating and enforcement provisions of legislation intended for the benefit of all to be tailored to the special position of government departments and, indeed, of Her Majesty in her private capacity.

Furthermore, the 2006 Act contains just such a provision in another Part of the Act. Section 23, which is contained in Chapter 1 of Part 3, dealing with the Supervision of Management and Use of Controlled Drugs, provides:

As it happens, virtually identical provision is made in the Scottish equivalent to the smoking ban contained in Chapter 1 of Part 1 of the 2006 Act, by section 10 of the Smoking, Health and Social Care (Scotland) Act 2005, which preceded the 2006 Act:

Had Parliament intended Part 1 of Chapter 1 of the 2006 Act to bind the Crown, nothing would have been easier than to insert such a provision into that Part. It would have made clear who could be prosecuted for the offences created. Furthermore, the Report of the Health Committee does indicate that Parliament was alive to the question of whether the smoking ban would bind the Crown and aware of the case for further exemptions if the Act were to do so. It might also be taken to indicate that Parliament was aware that the mischief at which the Bill was aimed was smoking on private premises over which the Government had no control.

It might well be thought desirable, especially by and for civil servants and others working in or visiting government departments, if the smoking ban did bind the Crown. But the legislation is quite workable without doing so. It cannot be suggested, in the way that it could be suggested in the Liverpool Coroner’s case , that a major plank of the Act’s purpose would remain unfulfilled if the Act did not bind the Crown. The Crown can do a good deal by voluntary action to fill the gap. The Commissioners were not able to fill the gap unless their obligations under the Act overrode their duty of confidentiality.

Thus, not without considerable reluctance, I am driven to the conclusion that this appeal must fail. There is a presumption that Acts of Parliament only bind the Crown by express words or necessary implication. Necessary implication entails that Parliament must have meant to bind the Crown. The fact that where Parliament did mean to do so in this Act, it said so, and made tailored provision accordingly, is to my mind conclusive of the question.