Smoking ban ‘not binding on the crown’

Posted: 2nd January 2018

CigarettesIt has long been established that the Crown – as the ultimate source of all law – is only bound by statutes where that is expressly stated, or necessarily implied.

The Supreme Court explored that rule in deciding that the ban on smoking in public places does not apply to the Ministry of Justice (MoJ).

The case concerned a life sentence prisoner who suffered from health problems made worse by tobacco smoke. He complained that the smoking ban was not being properly enforced in the common parts of the prison where he was held. He mounted a judicial review challenge after the Secretary of State for Justice refused to give him confidential and anonymous access to an NHS helpline by which he could report breaches of the smoking ban to the relevant local authority.

His claim succeeded before the High Court, but that result was later reversed by the Court of Appeal on the basis that the MoJ, as an emanation of the Crown, was not bound by the ban on smoking in public places and workplaces contained within the Health Act 2006.

In dismissing the prisoner’s challenge to that decision, the Supreme Court ruled that, in the absence of express words, it was impossible to find that Parliament had intended the Act to be binding on the Crown.

The test to be applied when interpreting the Act was whether, in the light of the words used, their context and the purpose of the legislation, such an intention was necessarily implied.

The Court noted that there were powerful indicators in the wording of the Act that Parliament had no such intention. The Act, in common with other similar statutes, could easily have stated in terms that the smoking ban was binding on the Crown. The Court noted that it dismissed the appeal with considerable reluctance and that the time might be ripe for Parliament, perhaps with the assistance of the Law Commission, to give careful consideration to the abolition of the rule.