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Gove can roll his own smoking ban:
R (Black) v Justice Secretary

Carsten ten Brink | CreativeCommonsDoes the smoking ban in public places apply to prisons? No, the Court of Appeal has said, in a judgment today. The ruling doesn’t lay down any “groundbreaking” precedent (it has no wider legal effect beyond determining that the smoking ban doesn’t apply) but is a fascinating reminder of an old-school principle of constitutional law, and a study in statutory interpretation.

It’s important from the outset to be clear that the judgment does not prevent the Ministry of Justice from phasing in a ban on smoking in prisons, as it plans to do. This Black case was a challenge by a prisoner who wants to take control of the timetable away from MoJ by establishing that the general ban on smoking in workplaces applies in all prisons.

Prisons—that is, old-fashioned public sector prisons run by the state—are managed by government under what are called “prerogative” powers: in other words, the state has an inherent legal power to run prisons, just as it does (for instance) to wage war. Justice Secretary Michael Gove does not need Parliament to lay down a smoking ban in prisons: he can make prisons smoke-free by changing prison rules or issuing prison service instructions. In any event, where the state owns and occupies prison buildings, it decides whether people can smoke there or not. Put all this together and you realise MoJ and prison governors can phase in a smoking ban prison by prison and cell by cell if need be, without the need for any legislation.

Indeed, legislation would be an irritant because it would lay down absolute, general rules that prison governors had to apply. In order to phase in a ban, MoJ would have to have made extensive, detailed exemptions for prisons which it would then have to lift one by one. What if a riot forced a governor to delay going smoke-free, or row the policy back? He or she would need to wait for the law to be changed.

Paul Black is a prisoner who’s not satisfied with the plan for a phased ban: he wants to establish a general legal right to be smoke-free in prison, a right that would be in place “yesterday” so to speak, under the Health Act 2006.

Section 3(2) of that Act enables ministers to make a special exemption for prisons. It’s clear that prisons are otherwise covered by the general ban, then, surely? Well, no. Parliament only intended to exempt private prisons, according to the Ministry of Justice, so that’s what the word prisons means. There’s no need to exempt traditional government-run prisons.

MoJ’s argument is based on a long-established constitutional rule that says Acts of Parliament are presumed not to bind the Crown—i.e. government departments like MoJ and the Prison Service. The rule has origins in constitutional history: I suppose it reflects some old conception of the separation of powers under which Parliament was assumed not to tread on the toes of the Crown. But it’s not an obscure doctrine that’s been hidden for centuries: it’s orthodox law. We just tend to forget about it because Parliament so often makes explicit provision for legislation to apply to government. For example, special provision gives employment rights to civil and armed servants of the Crown. There is no such explicit provision in Part 1 of the Health Act 2006.

But that’s not the end of the matter, because the Crown can be bound if the legislation necessarily implies that it is. As Mr Justice Day said in a Victorian era case, Gorton Local Board v Prison Commissioners , referred to in paras. 13 and 14 of today’s judgment,

In the absence of express words the Crown is not to be bound, nor is the Crown to be affected except by the necessary implication. There are many cases in which such implication does necessarily arise, because otherwise the legislation would be unmeaning. That is what I understand by “necessary implication”.

In a later case from the very end of the British Raj, Province of Bombay v City of Bombay (discussed 18-20), the Privy Council held that the “necessary implication” test is a high one, that should not be “whittled down”:

If … it is manifest from the very terms of the statute, that it was the intention of the legislature that the Crown should be bound, then the result is the same as if the Crown had been expressly named.

Does the Health Act smoking ban apply to prisons by necessary implication, then? Mr Justice Singh thought so in the Administrative Court (para. 49 of his judgment):

In my view, the beneficent purpose of the Act would be wholly frustrated if the Crown were not bound by it. In my view, it is clear from the terms of the statute, understood in context, that Parliament had decided that the time had come when the criminal law had to enter this area of social life; the time had passed when it could simply be left to action through the powers of employers, landowners and Government policy.

Furthermore, he said (para. 51)

the express reference to the possibility of an exemption being made in respect of prisons in section 3(2) of the Act is a statutory indicator that Parliament did envisage that, unless an exemption applied, prisons would be covered by the Act. Although there are currently 14 prisons in the private sector, and I am informed by the parties that there were about 10 private prisons in 2006, there is no indication in the statute that Parliament intended the reference in the Act to prisons to be confined to a small number of private prisons or indeed to draw any distinction between private prisons and state prisons in this context.

True, a separate section, section 23, explicitly applies a different bit of the Health Act to the Crown. Should the contrast lead us to conclude no such application was intended in the case of the smoking ban? No, said Singh J (paras. 69-70):

section 23 is to be found in another part of the Act, not in Part 1, with which the present case is concerned …

Secondly, in my judgment, section 23 is concerned to specify the exact way in which Chapter 1 of Part 3 is to bind the Crown … In my view, it was because Parliament wished to make those additional legal provisions clear that one finds section 23 in the Act.

Today the Master of the Rolls, Lord Dyson, has rejected that reasoning completely, and allowed MoJ’s appeal (para. 39):

I do not accept that the purpose of the Act would be wholly frustrated if Chapter 1 of Part 1 did not apply to the Crown. Although it is true that the 2004 White Paper (i) recognised the dangers of both active and passive smoking, (ii) noted a change in public attitude to smoking restrictions over recent years and (iii) expressed the desire to “shift the balance significantly” in favour of smoke-free environments, nevertheless it also stated that whether to ban smoking in certain establishments (including prisons) would need to be the subject of consultation. In other words, it acknowledged that it would not necessarily be appropriate to extend the smoking ban to all premises. Although the general aim of the Act was to shift the balance in favour of smoke-free environments, the Act did not require all premises to be smoke-free.

… In these circumstances, it is impossible to hold that, if Chapter 1 of Part 1 were not to apply to the Crown, the purpose of the Act would be wholly frustrated.

A key part of his reasoning was a pirnciple he drew from the older cases, that the government can be assumed to generally cooperate with Parliament’s wider policy on matters like public health (para. 40)—

the question is whether the statutory purpose would be wholly frustrated if the Crown were not bound. The case law shows that the courts are unwilling to answer this question in the affirmative in circumstances where it is to be expected that the Crown will act in the public interest so as substantially to meet the statutory objectives even if it is under no statutory obligation to do so.

As for section 23, he said (para. 42)

Section 23 demonstrates the recognition by Parliament of the need (or the desirability for clarity) of expressly stating when and how the parts intended to bind the Crown do so … the statement in section 23(1) that Chapter 1 of Part 3 binds the Crown is only explicable on the basis that the Crown would otherwise not be bound. That is a powerful pointer to the conclusion that, since there is no counterpart of section 23(1) in Part 1, the Crown is not bound by Part 1.

and as regards the exemption for “prisons” (para. 47)

I accept that, at first sight, it might seem odd to legislate only for private prisons, which represented only a small percentage of the prison estate. But there were private prisons for which the Act had to cater and the number of these might increase over time. More fundamentally, section 3(2) is of little significance as a statutory indicator when account is taken of the weight to be accorded to (i) the general rule that the Crown is not bound unless expressly or by necessary implication; and (ii) the effect of section 23 of the Act. In my view, section 3(2) does not suggest, still less indicate decisively, that the Crown is bound by Chapter 1 of Part 1.

This case is a fascinating study in statutory interpretation, showing how the meaning of legislation is neither obvious, nor determined simply by applying one or more simple “rules”. Parliament’s intention is found or constructed by a weighing of factors, including fundamental constitutional principles and the textual clues given by a reading of an Act as a whole. Exceptional lawyers such as Singh J and Lord Dyson MR may reach different conclusions.

It’ll be interesting to see what the Supreme Court makes of the case, if permission is given for an appeal. For what it’s worth, I think Lord Dyson must be right. In the meantime, Michael Gove can roll his own smoking ban; he needn’t light up Paul Black’s unwanted gift from the legislative shop.

Photo: Carsten ten Brink | CreativeCommons

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  1. Thanks: fascinating! Both interpretations, although mutually contradictory, seem almost equally persuasive. Personally, although I fully understand the arguments of Lord Dyson, I still think the commonsense view must be that parliament intended the law to apply to all prisons, public as well as private, and that had parliament intended it to apply only to private prisons, it would have said so. But I also see the importance of safeguarding the principle that the Crown is not bound unless the statute says it is, explicitly or by necessary implication, and neither is the case here. Sloppy drafting by the parliamentary draftspersons, apparently — unless the lack of clarity with all its consequences was deliberately introduced by the Ministry of Justice so as to maintain its freedom to keep control of the phasing out of smoking in public prisons, which will be intensely provocative in prisons and which will have to be done very gradually if it is not to provoke widespread violence. I wonder whether the Supreme Court will connive at such a manoeuvre, if that’s what it is, even though its purpose could well be to defeat the will of parliament.

  2. You have a great writing skill. Wonderful post! I think Government should ban smoking in prisons and every others public place. Smoking is harmful for every way. Then why should we support this poison! This is the right time to take that action.