R (Black) v Secretary of State for Justice  UKSC 81
The Supreme Court has delivered its judgment in this long-running case concerning whether Crown Immunity applies to the smoking ban introduced by the Health Act 2006, brought by a serving prisoner Paul Black.
The case was heard by Lady Hale and Lords Mance, Kerr, Hughes and Lloyd Jones on 31st October and 1st November 2017.They concluded, “not without considerable reluctance”, that Mr Black’s appeal must fail.
The judgment, given by the President Lady Hale, contains the following points of importance:
(i) The court considered academic criticisms of the presumption that a statutory provision does not bind the Crown save by express words or “necessary implication”. Declining to reverse or abolish the rule altogether, noting that the principle is so well established in modern times that many statutes will have been drafted and passed on the basis that it exists, they nonetheless urged Parliament, perhaps with the assistance of the Law Commission, to give careful consideration to the merits of doing do. (Paragraphs 33-5)
(ii) The court proceeded to clarify the test for necessary implication and to modify it in the following ways:
- They noted that the goal of all statutory interpretation is to discover the intention of Parliament. That intention is to be gathered from the words used by Parliament, considered in the light of their context and their purpose. In this context, they considered it clear that Lord Hobhouse’s dictum in in R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax  UKHL 21;  1 AC 563, at para 45, that “A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context” must be modified to include the purpose, as well as the context, of the legislation. (Paragraph 36(4))
- They rejected the contention that it was necessary for the purpose of the legislation to be “wholly frustrated”. This has been accepted as a requirement in many cases including by the Court of Appeal in this case since the use of that term in Province of Bombay v Municipal Corporation of the City of Bombay  AC 58. The Supreme Court has clarified that this is only one example of where the Crown would be bound by necessary implication. Other examples include where an important purpose would be frustrated. (Paragraph 35(6))
- They considered that it was neither necessary nor desirable to add any further gloss to the test or to characterize it by adjectives such as “strict”. (Paragraph 37)
- They held that In principle, it is not an objection to the Crown being bound that the Act imposes criminal liability, rejecting the Respondent’s argument that a particularly high threshold applied in such circumstances and noting that this has no basis in the leading English and Scottish cases.
The judgment notes strong points in favour of the Crown being bound in this case, at paragraphs 38 to 42, including the lack of any sensible reason for distinguishing between private and public prisons and the fact that the prison service and Department of Health had clearly assumed prisons were subject to the ban. The Court nonetheless accepted that there were powerful contra-indicators, set out at paragraph 43 onwards. The conclusive feature in the Respondent’s favour was another Part of the same Act did make specific provision for Crown Application (Paragraph 50).
It remains to be seen whether Parliament or the Law Commission will act upon the Supreme Court’s suggestion that Crown Immunity should be revisited – the rule has been reversed in a number of foreign jurisdictions. Should the rule remain as it is, it is significant that the “wholly frustrated” test no longer applies. It should also be easier to demonstrate necessary implication where the Act does not make any specific provision for the Crown elsewhere and the purpose of the Act weighs in favour of the Crown being bound.
Philip Havers QC and Shaheen Rahman QC instructed by Leigh Day for the Appellant.
James Eadie QC and David Pievsky instructed by Government Legal Services for the Respondent.
Read more about the judgement here.