No smoke without fire: revisiting the Crown exemption rule
17 January 2018
When is the Crown bound by a statute that does not expressly refer to it? This was the question that arose for consideration by the Supreme Court in R (on the application of Black) v Secretary of State for Justice  UKSC 81 (see the judgment here).
The appellant, a serving prisoner, sought judicial review of the Secretary of State’s refusal to provide prisoners at HMP Wymott with access to the NHS’s Smoke-free Compliance Line. This freephone telephone line is designed to enable anyone to draw breaches of the ban on smoking in enclosed public places and workplaces in England and Wales to the attention of enforcement authorities. The refusal to provide the appellant with access to the Compliance Line was made on the basis that Part 1 of the Health Act 2006 (which brought the ban into force) did not bind the Crown. The claim succeeded at first instance (before Singh J), but the Court of Appeal (Lord Dyson, McCombe LJ and Richards LJ) allowed the Secretary of State’s appeal.
In a unanimous judgment, the Supreme Court dismissed the appeal. They refused to revisit the presumption, stated in Province of Bombay v Municipal Corporation of the City of Bombay  AC 58 and Lord Advocate v Dumbarton District Council  2 AC 580, that a statutory provision does not bind the Crown, save by express words or “necessary implication” (the “Crown exemption rule”). The Court found that the presumption is so well established that many statutes will have been drafted and passed on the basis that the Crown is not bound.
The Court went on (at paragraph ), to set out several propositions that constitute the rule, before applying them to the case at hand. The Court found that, although there were indications that, before the 2006 Act was passed, the prison service expected to be subject to the smoking ban, there were powerful indicators in the language of the 2006 Act that the Crown was not bound. First, the statute did not say that the Crown was bound. Second, in legislation with comparable structures and enforcement powers, there are provisions dealing with how the Act is to apply to the Crown, such as the Health and Safety at Work etc Act 1974. Third, there is a provision in section 23 of the 2006 Act binding the Crown in relation to Part 3, which deals with the Supervision of Management and Use of Controlled Drugs, as well as a provision in section 10 of the Smoking, Health and Social Care (Scotland) Act 2005 binding the Crown for the Scottish equivalent to the smoking ban. Therefore the silence on the point in Part 1 of the 2006 Act implies that that Part does not bind the Crown.
In Black the Supreme Court did not conclude that the Crown cannot be bound by the smoking ban, but rather that the 2006 Act does not provide for the Crown to be bound. One of the principles explained by the Court in its judgment is that the Crown exemption rule is one of statutory interpretation, rather than a strict immunity from liability.
It is a rule that, nonetheless, raises a number of questions for debate.
First, it may be argued that the Crown exemption rule renders the law less accessible: without legal training anyone reading the 2006 Act might reasonably assume it binds the government. In consequence, there may be a danger that the issue of whether a particular law should bind the Crown may not receive the prominence it deserves.
Second, the rule might be considered to make the law less certain. Without it, it would be unnecessary to ask a Court to determine whether there was a “necessary implication” that the Crown was bound (a task that would perhaps have been harder and less certain in Black, had there been no reference to the Crown in the equivalent Scottish provisions or other Parts of the 2006 Act).
Third, it may be considered surprising to some that, where there is no express provision, the starting point is a rule of statutory construction that has the effect that legislation does not apply to Crown servants. As the Supreme Court noted (see paragraph  of the judgment), Paul Craig has highlighted that the Crown exemption rule is not always in the mind of the parliamentary draughtsperson, such that where the rule is not contemplated, the Crown could be exempt from provisions that were intended to apply universally. For example, the Offences Against the Persons Act 1861 contains no provision relating to the Crown: strict application of the rule might be argued to have the result that Crown servants are not committing offences if, in the course of their duties, they commit one of the offences contained within that Act.
At present, there is no difficulty with Parliament adding a provision to any Act to make it bind the Crown (indeed this is given as a justification for upholding the rule), but it could equally easily add explicit exemptions where desirable. In the circumstances, and given the considerations noted above, it might be argued that the latter approach is preferable and more in keeping with democratic norms.
It is, of course, easy to see why certain laws should not bind the Crown. Soldiers need to be able to carry guns without obtaining a licence from their local constabulary, for example. In the case of the smoking ban, a key part of the statutory scheme is a regime of inspection and enforcement. It is plainly undesirable that local government officials should have a right to enter and inspect all government buildings – in the context of this case, for example, arriving at a high security prison and demanding to inspect the premises.
It is also sometimes unnecessary for laws to bind the Crown. The Government had already voluntarily introduced smoke-free offices, and there is no suggestion that breaches of the rules by civil servants were being tolerated. Even in the prison context, plans for entirely smoke-free prisons (including the residential areas or cells) are well underway.
However, it is open to question whether these justifications for Crown exemption bear on what should be assumed where a statute does not contain a provision on Crown application.
It is noteworthy that Lady Hale suggested (at paragraph ), that there is a strong case for Parliament to clarify the rule in primary legislation. Regardless of any view of the merits of the Crown being exempt from certain legal provisions, it might be considered a positive step for the clarity of UK law, to have a short provision simply stating: “Unless otherwise provided, all Acts bind the Crown.” The transitional provisions would be slightly more complicated: naturally it could only apply to subsequent statutes, not to previous legislation that was based on the opposite assumption. But what about later statutes amending earlier Acts, or later statutes which say they must be read with a prior statute since together they create a comprehensive code? Which rule of interpretation then applies? Should such a provision ever be introduced, the Office of Parliamentary Counsel would have an unenviable task.
This post was drafted by Alex Du Sautoy and Vincent Scully, both pupil barristers at 6KBW.