R (Black) v Secretary of State for Justice

The Court has confirmed and applied the old rule of statutory interpretation to the effect that the Crown is not bound by legislation in the absence of express provision or by necessary implication. The case arose in the context of the smoking ban in the Health Act 2006. The issue was whether that ban, with its criminal sanctions, extended to state-run prisons (and to the Crown generally). 

The Court, accepting the submissions of the Secretary of State, unanimously concluded that it did not do so. Parliament could easily have made express provision for the Crown to be bound, as it often does, but it did not do so in this legislation. Whilst there were good policy arguments to the effect that non-smokers on Crown property ought to have equivalent protection from passive smoking compared to other workers, it could not be said that this gave rise to a “necessary implication”. Parliament, from the words used in the legislation, had clearly intended that on Crown property, anti-smoking rules and sanctions would be governed by policy and disciplinary rules, not by the criminal law. The Court, whilst refusing the Appellant’s invitation to reverse this rule of statutory interpretation, did however clarify some of the previous jurisprudence, and suggest that Parliament (perhaps with the Law Commission) might in due course wish to revisit the rule in order to assess whether it needed to be amended or modified.

James Eadie QC and David Pievsky acted for the Secretary of State.