IN R. (Black) v Secretary of State for Justice [2017] UKSC 81, [2018] 2 W.L.R. 123, Black, a prisoner at HMP Wymott, was concerned that passive smoking was damaging his health. He requested that the NHS Smoke-Free Compliance Line (SFCL) be installed in prisons, enabling him to report breaches of the smoking ban found in Part 1 of the Health Act 2006. He followed up his request with a pre-action protocol for judicial review, which initially resulted in the prison issuing instructions to allow Black access to the SFCL. However, Black's victory was short-lived. The Secretary of State replied to the pre-action protocol letter that Part 1 of the Health Act 2006 did not bind the Crown. Therefore the SFCL had no statutory role to play in the enforcement of the smoking ban in state prisons. Black then brought an action for judicial review against the Secretary of State's letter. This raised an important constitutional issue – how far does legislation bind the Crown?
It is a long-standing common law principle that legislative provisions do not bind the Crown, unless by express words or necessary implication. Part 1 of the Health Act 2006 does not expressly mention that the Crown is bound by its provisions. The Supreme Court was asked to revisit this principle; or to modify it; or to conclude that the smoking ban bound the Crown by necessary implication. Lady Hale, giving judgment for the Court, declined to change the principle. She did provide a detailed clarification of its application, classifying this as a principle of statutory interpretation as opposed to a presumption of Crown immunity. Nevertheless, and “not without considerable reluctance” (at [50]), Lady Hale concluded that the smoking ban did not apply to Her Majesty's prisons.
Lady Hale's reluctance illustrates a tension evident in a string of constitutional cases. Whilst courts may be drawn to a particular substantive outcome, concerns as to the proper role of the judiciary may tug strongly in the opposite direction. This comment will touch on two specific illustrations in Black, the rule of law and statutory interpretation, to evaluate the light cast by this case on the growing role of the Supreme Court as guardian of the constitution.
The presumption that legislative provisions do not apply to the Crown has been strongly criticised, both as regards its compliance with the rule of law and the factual assumptions on which it is based. Lady Hale appeared to accept the criticisms and the desirability of the proposed solution: to reverse the presumption, such that the Crown is bound by legislation unless there is express wording to the contrary.
Nevertheless, Lady Hale felt unable to change the law. Her concerns focused on the impact of modifying it. There is a long history of drafting legislation on the basis that it does not apply to the Crown unless by express words or necessary implication. Because a decision to change the presumption would have retrospective effect, this would have extensive ramifications for legal certainty. Whilst recognising the possibility of prospectively overruling the presumption (see In re Spectrum Plus Ltd. [2005] UKHL 41, [2005] 2 A.C. 680), Lady Hale was unwilling to choose this solution. Prospective overruling only applied in exceptional circumstances, and no argument had been provided regarding its application in Black. Instead, she preferred (at [35]) to “urge Parliament, perhaps with the assistance of the Law Commission, to give careful consideration to the merits” of changing the presumption.
It is a shame that arguments were not raised as to the possibility of prospective overruling. It is at least arguable that the case could have lent itself to such a solution. For example, the Court could have made it clear that reversal of the presumption would take effect at a future date. Whilst this may appear to be akin to the courts performing a legislative task, it is important to recognise that the Supreme Court was asked to modify a principle of statutory interpretation – namely to change the common law. Moreover, prospective overruling concerns the remedy, not the substantive outcome. Similar methods have been used in EU law. See, for example, C-402/05 P and C-415/05 P, Kadi and Al Barakaat International Foundation v Council and Commission [2009] A.C. 1225, where the impact of the judgment to annul an EU regulation was delayed to prevent serious and irreversible prejudice to the effectiveness of the measure. A three-month delay enabled the Council and Commission to maintain the regulation, implementing UN measures on the freezing of the assets of terrorist suspects, whilst having the requisite time to re-enact the regulation with stronger procedural protections. A similar delay in Black would have provided Parliament with the time to revisit legislation to determine whether it should apply to the Crown and to enact measures so as to clarify the law and ensure that all legislation takes account of the new presumption.
However, there are also deeper problems. There are at least two normative criticisms of the presumption. First, we could argue that it is the wrong presumption as it rests on a misunderstanding of the rule of law. It should no longer be the case that the Crown is treated differently from others; rather the same rules should apply to the Crown as apply to everyone else, unless specific justification is provided for an exemption. Secondly, we could argue that the presumption is designed to ensure that Parliament has thought clearly about whether legislative provisions should apply to the Crown. However, time pressures in Parliament now increase the likelihood of parliamentary engagement were the presumption to be reversed, requiring Parliament to insert express wording to exempt the Crown rather than specific wording to impose liability on the Crown. Whilst it is acceptable for courts to modify a common law presumption to reflect constitutional principles, it is less acceptable for courts to modify the common law based on a change in parliamentary behaviour. This is more suited for investigation by Parliament and the Law Commission, particularly as it requires detailed factual evaluations for which courts are neither institutionally nor constitutionally suited.
Issues then arose as to the clarification and possible modification of the presumption that legislation does not bind the Crown, unless by express words or necessary implication, and its application to the 2006 Act. Lady Hale confirmed that the presumption enshrined a principle of statutory interpretation that could be clarified and modified by courts. Its application is determined by construing the words of the legislation “in the light of their context and their purpose” (at [36]). Moreover, necessary implication did not only arise when the purpose of the legislation would be wholly frustrated if it did not bind the Crown, but could also arise when a very important purpose of the legislation would be frustrated. When determining this, courts had to take account of the extent to which the Crown may voluntarily comply with a legislative provision, thus averting potential frustration.
There were indications that Part 1 of the Health Act 2006 should bind the Crown. The purpose of the Act was the protection of health, which could be equally harmed in workplaces and public places owned by the Crown as in private workplaces. The White Paper on which the Act was based expressly referred to prisons when discussing workplaces which included residences. There was no mention of this only applying to private prisons. Evidence also demonstrated that Her Majesty's Prison Service believed they were bound by the legislation.
Nevertheless, Lady Hale concluded that the wording of the legislation clearly pointed in the opposite direction. There was no use of the standard wording which would have made clear that the smoking ban applied to the Crown, yet this wording was used in other sections of the Public Health Act 2006. Moreover, the Smoking, Health and Social Care (Scotland) Act 2005 included an express provision that the smoking ban in Scotland did bind the Crown. It would therefore have been easy for Parliament to demonstrate expressly that it wished the 2006 Act to bind the Crown.
Moreover, no major aim of the legislation would remain unfulfilled were the Crown not to be bound, particularly as the Crown could voluntarily ban smoking in prisons. The case could therefore be distinguished from R. (Revenue and Customs Commissioners) v Liverpool Coroner [2014] EWHC 1586 (Admin), [2015] Q.B. 481, where a main aim of the statute – to ensure compliance with the European Convention on Human Rights (ECHR) – would not be achieved were the Commissioners exempt from providing coroners with historical occupational information. This could not have been achieved voluntarily; without the statutory obligation, disclosure of this information would breach duties of confidentiality.
It may be tempting to see the Court's approach as one favouring the wording of legislation over its purpose; more formalistic than realistic. It is then a small step to see Black as joining the recent Court of Appeal decision in R. (Privacy International) v Investigatory Powers Tribunal [2017] EWCA Civ 1868, indicating a move away from the realistic approach's zenith in R. (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 W.L.R. 583, towards a more literal approach to statutory interpretation. More accurately, Black illustrates that statutory interpretation does not take place in a vacuum, requiring an evaluation of language, purpose and the practical consequences of changing the law. Trying to identify trends towards a more liberal or more conservative approach is fraught with potential misinterpretation.
Black also shows that courts and legislatures can interact in a variety of ways. Whilst Lady Hale concluded that the Supreme Court was not best-placed to change this presumption, she nevertheless invited Parliament to act. The question remains as to what, if anything, courts should do if this invitation is ignored; leaving the door open for a more detailed evaluation of whether this may justify prospectively overruling a principle of statutory interpretation.
