Behind Bars, Beyond Smoke

  • 03 Pages
  • Published On: 22-11-2023
1. Legally relevant facts and appellate history

The appellant is an inmate in Prison Wymott. The root cause of the action started with his complaint of being exposed to second hand tobacco smoke in the common parts of the prison. The Secretary of State disputed his view that smoking is prohibited in areas of the prison.

The appellant raised a request in September 2013 for putting the National Health Service Smoke-free Compliance Line (SFCL) on the prison phone system for all the prisoners. The purpose was to enable reporting to concerned local authorities of breaches of the smoking ban. He also issued a pre-action protocol letter as a prelude to issuing judicial review proceedings.

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The prison, on 13 January 2014, issued direction that arrangements were made so that he could access SFCL on his individual phone account. However, the Secretary of State in reply to his pre-action protocol letter, issued a letter that stated that Part 1 of the Health Act does not bind the Crown. As such, Local authorities do not have an statutory role to enforce smoke-free provisions at HMP Wymott.

The appellant launched relevant proceedings in March 2014. He sought judicial review of refusal by the Secretary of State to provide prisoners confidential and anonymous access to prisoners. The High Court in its 2015 decision found that the Act bound the Crown and quashed the refusal decision of the Secretary of State.

Against the decision of the High Court, the Secretary of State appealed successfully to the Court of Appeal, which, in 2016, reversed the High Court decision. The appellant now appeals to the Supreme Court against this decision.

2. Content of the law - substantive provisions, sources, and deficiencies

The health bill was passed on 19 July 2006. Smoking ban came into force on 1 July 2007. Chapter 1 of Part 1 of the Health Act 2006 governs smoking in most enclosed public places and workplaces.

Provisions. The relevant provisions in regard to this case concern determination of premises that are treated smoke-free and power of the concerned local authority that could exempt premises from being smoke free.

According to Section 2(1) of the 2006 Act, a premises is smoke-free if they are open to the public. The 2006 Act in its Section 2(2) identifies premises are smoke-free if they are used as a place of work either:

a. by more than one person irrespective of the fact that the persons work at different times or intermittently; or

b. where the public may use the premises for seeking or receiving goods or services from the person(s) working there irrespective of the public being not always present.

The 2006 Act also provides authority to the Secretary of State in England and the National Assembly in Wales to make necessary regulating exempting premises from the ban on smoking.

Section 3(1) provides that they are the appropriate national authority. They may, through regulations, exempt any specified premises or areas within them, including premises where a person has their home, such as hotels, care homes, prisons and any other places where the person may be detained.

The Smoke-free (Exemptions and Vehicles) Regulations 2007 (SI 2007/765), regulation 5 also provide that the person who is in charge of such premises, including prisons, may designate a bedroom or smoking room as not smoke free.

Deficiency. The core issue in this case was whether the Crown is bound by the statute. The answer is no. This is the gap in the concerned statute. Unless the Crown by express words or necessary implication binds itself, the Acts of the Parliament cannot bind the Crown.

The Act 2006 only makes a premise opened to or use by the members of the public smoke-free. Other premises are subject to the authority of the Secretary of State to determine whether or not a premises would be smoke free. Such premises include prisons under the exemption. It is left to the discretion of the national authority or a person with such national authority to declare a premises as not smoke free. This represents the gap in the Act 2006. The Crown itself is not bound by the Act 2006.

The case of Province of Bombay v Municipal Corporation of the City of Bombay (1947) highlighted the general principle is the statute must not be in doubt about whether or not the Crown is bound by general words in a statute. It is only when the statute expressly named the Crown that the Crown would be bound. This is the exception to the general principle. The Crown may be bound by necessary implication. The statute must have the intention to bind the Crown.

Baroness Hale’s restatement of the law and summarise the law after the judgment Baroness Hale’s restatement

Baroness Hale states that had Parliament intended Part 1 of Chapter 1 of the 2006 Act to govern the Crown also, it would have had easier for it to insert such a provision into Part 1. Accordingly, the Parliament would have also made clear who could be prosecuted for the offences.

Baroness Hale also cited other Acts that have comparable structures and enforcement powers. They have provisions that expressly state how and to the extent to which the Act would apply to the Crown. Baroness Hale cited the Health and Safety at Work etc Act 1974, s 48; the Food Safety Act 1990, s54; Section 23, Chapter 1 of Part 3, dealing with the Supervision of Management and Use of Controlled Drugs; and the Smoking, Health and Social Care (Scotland) Act 2005, s10 that expressly provide for application of the Acts on the Crown.

Baroness Hale stated that the 2006 Act is workable without binding the Crown. Baroness Hale did not also acknowledge the suggestion in Liverpool Coroner’s case that the substantial purpose of the Act would “remain unfulfilled if the Act did not bind the Crown”. It is only the Crown that could fill the gap by its voluntary action.

Based on the consideration, the appeal was dismissed. It was held that the Crown was not to be bound by the smoking ban.

Summary of the law.

Smoking is banned according to Chapter 1 of Part 1 of the Health Act 2006 in most enclosed public places and workplaces. Sections 2(1) and 2(2) are the main concerned provisions here that ban smoking in place that is used for work by the members of the public. In its Section 3(1), the Act 2006 gives authority to the Secretary of State to exempt specified premises or areas within them, including prisons from such ban.

Reading sections 2 and 3 together, there is an apparent gap in the statute. The statute appears to bind the Crown as well. However, that it is the Crown, including its national authority the Secretary of State, which has the authority to exempt premises from the ban. Further, the Act 2006 does not expressly provide for binding the Crown by the provisions of the Act 2006. It s because of this gap that the appeal was dismissed holding that the Secretary of State is not bound to enforce the ban in the prison premises.

4. Relationship between primary legislation and case law

The relevant provisions of the 2006 Act, Sections 2(1), 2(2) and 3(1) respective provide for ban of smoking at public place, which is used as place of work and also provide for exemption of certain premises from the ban.

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The concerned case law involved determining whether or not the areas of the prison fall within the ban or are exempted from the ban. Section 3(1) clearly defined that prison comes under the specified premises that could be out of the ban. The 2006 Act provides authority to the Secretary of State in England and the National Assembly in Wales to make necessary regulating exempting premises from the ban on smoking. Accordingly, prison or any area that is used to detain a person is exempted from the ban.

As is discussed here earlier, unless the Crown by express words or necessary implication binds itself, the Acts of the Parliament cannot bind the Crown. The 2006 Act does not contain any express provision to that effect. Baroness Hale also appropriately observed that if it were within the intent of the Parliament that the 2006 Act would bind the Crown, it would have done so. Instead, the 2006 Act gives national authority to the Secretary of State to exempt any premises it specifies from the ban. Accordingly, it is not bound to enforce the provisions of the smoke ban in the prison areas, which the appellant alleged that smoking was prohibited in those areas.

Based on the consideration of: i) that the express provisions regarding where smoking is banned and where the ban is exempted; ii) that the express provisions do not bind the Crown; and iii) that the Crown or for this matter, the Secretary of State is not bound by the 2006, accordingly, Baroness Hale dismissed the appeal of the appellant.

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