R (Black) v Secretary of State for Justice

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLord Lloyd-Jones,Lady Hale,Lord Hughes,Lord Mance,Lord Kerr
Judgment Date19 Dec 2017
Neutral Citation[2017] UKSC 81

[2017] UKSC 81


Michaelmas Term

On appeal from: [2016] EWCA Civ 125


Lady Hale, President

Lord Mance, Deputy President

Lord Kerr

Lord Hughes

Lord Lloyd-Jones

R (on the application of Black)
Secretary of State for Justice


Philip Havers QC

Shaheen Rahman QC

(Instructed by Leigh Day)


James Eadie QC

David Pievsky

(Instructed by The Government Legal Department)

Heard on 31 October and 1 November 2017

Lady Hale

( with whomLord Mance, Lord Kerr, Lord HughesandLord Lloyd-Jonesagree)


The issue in this case is whether the Crown is bound by the prohibition of smoking in most enclosed public places and workplaces, contained in Chapter 1 of Part 1 of the Health Act 2006 (for shorthand, I shall call its provisions "the smoking ban"). The issue comes before this Court because a prisoner, who is serving an indeterminate sentence at Her Majesty's Prison Wymott and a non-smoker with a number of health problems, complains that the ban is not being properly enforced in the common parts of the prison. But the same issue affects the myriad of premises which are occupied by central government departments, the civil servants and other people who work there, and the members of the public who visit the premises for business or pleasure. They need to know whether the smoking ban which applies to those premises is simply an instruction from the managers or whether it is backed up by criminal sanctions and other enforcement measures having the force of law.

This case

The appellant suffers from a number of health problems which are exacerbated by tobacco smoke, including hypertension and coronary heart disease. He has a history of myocardial infarction and required surgical coronary intervention in 2009. He complains about his exposure to second-hand tobacco smoke in the common parts of the prison. He alleges that both staff and prisoners often smoke in areas of the prison where smoking is prohibited. The Secretary of State disputes this, but it is not the business of these proceedings to resolve that factual dispute.


In September 2013, the appellant asked that the National Health Service Smoke-free Compliance Line (SFCL) be put on the prison phone system for all prisoners. This would enable them to report breaches of the smoking ban to the local authorities charged with enforcing it. He followed this up with a pre-action protocol letter as a prelude to issuing judicial review proceedings. At first, this brought him the result he was looking for — on 13 January 2014, the prison issued instructions that arrangements be made for him to have access to the SFCL on his individual phone account. By itself, that might be thought to indicate that the prison thought that the smoking ban applied to them, for what would otherwise be the point of relaxing the general ban on adding Freephone numbers to prisoners' mobile phones, if not to enable them to alert the enforcement authority of possible breaches of the ban?


However, that is unlikely to be the case, because the very next day the Secretary of State stated in a letter, in answer to the pre-action protocol letter, that

"Part 1 of the Health Act does not bind the Crown. Accordingly, the Secretary of State is of the view that Local Authorities (including on reference by the Compliance Line) have no statutory role in relation to the enforcement of smoke-free provisions at HMP Wymott."

The appellant therefore launched these proceedings in March 2014, seeking judicial review of the Secretary of State's refusal to provide confidential and anonymous access to the SFCL to prisoners. He was successful before Singh J, who held that the Act did bind the Crown and quashed the Secretary of State's decision: [2015] EWHC 528 (Admin); [2015] 1 WLR 3963. The Secretary of State appealed successfully to the Court of Appeal, which held that the Act did not bind the Crown: [2016] EWCA Civ 125; [2016] QB 1060. The appellant now appeals to this Court.

The background to the smoking ban

It has, of course, been known for a long time that smoking tobacco is hazardous to the health of the smoker. Recognition of the dangers of passive smoking is more recent. An account of the genesis of the smoking ban, in the context of hospitals, including mental health units, can be found in Appendix A to the judgment of the Court of Appeal in R (G) v Nottinghamshire Healthcare NHS Trust [2009] EWCA Civ 795; [2010] PTSR 674, an unsuccessful challenge to the smoking ban at Rampton Hospital on human rights grounds. Briefly, in 1998, Smoking kills: A White Paper on Tobacco (Cm 4177) estimated that smoking in the United Kingdom caused 46,500 deaths from cancer and 40,300 deaths from all circulatory diseases. Smokers who smoked regularly and then died of smoking-related diseases lost on average 16 years from their life expectancy when compared with non-smokers. However, at that time it was thought that the case for legal action to restrict smoking was not sufficiently strong.


In reports of 1998 and 2004, the Scientific Committee on Tobacco and Health concluded that exposure to second-hand smoking (SHS) was a cause of a range of serious medical conditions and recommended restrictions on smoking in public places and work-places so as to protect non-smokers from SHS. The overall increased risk of lung cancer for non-smokers exposed to SHS was put at 24%. In December 2005, the House of Commons Health Committee reported that SHS caused at least 12,000 deaths a year in the United Kingdom of which a minimum of 500 were due to the presence of smoke in the workplace (First Report Session 2005–2006, Smoking in Public Places, HC 485-I, para 17). One year after the smoking ban came into force, the Department of Health published a report, Smoke-free England — one year on (2008), which stated:

"Medical and scientific evidence shows that exposure to second-hand smoke increases the risk of serious medical conditions such as lung cancer, heart disease, asthma attacks, childhood respiratory disease, sudden infant death syndrome (SIDS) and reduced lung function. Scientific evidence also shows that ventilation does not eliminate the risks to health of second-hand smoke in enclosed places. The only way to provide effective protection is to prevent people breathing in second-hand smoke in the first place."


In his foreword to that Report, Sir Liam Donaldson, Chief Medical Officer, recalled that he had first called for public places and workplaces to made smoke-free in his 2002 Annual Report, which was met with considerable hostility as well as support. The following year, his 2003 Annual Report set out the economic case for smoke-free legislation, and recommended that smoke-free workplaces and smoke-free enclosed public places should be created as a priority through legislation.


This recommendation was reinforced by the international obligations undertaken by the United Kingdom. In 2003, the World Health Organisation published its Framework Convention on Tobacco Control. The United Kingdom ratified this in December 2004 and it came into force on 27 February 2005. Article 8, headed Protection from exposure to tobacco smoke, provides:

"1. Parties recognize that scientific evidence has unequivocally established that exposure to tobacco smoke causes death, disease and disability.

2. Each Party shall adopt and implement in areas of existing national jurisdiction as determined by national law and actively promote at other jurisdictional levels the adoption and implementation of effective legislative, executive, administrative and/or other measures, providing for protection from exposure to tobacco smoke in indoor workplaces, public transport, indoor public places and, as appropriate, other public places."


In 2004, after extensive public consultation, the Department of Health published a White Paper Choosing Health — Making Healthy Choices Easier (Cm 6374), canvassing a number of health-related initiatives. Among these, reducing the number of people who smoke was a priority:

"because it leads to heart disease, strokes, cancer and many other fatal diseases; because many people felt this was an area in which they needed more support in addressing the problem; because many people were concerned about the effects of second-hand smoke; and because many parents were concerned about their children taking up smoking." (Executive Summary, para 10)


Hence, in paragraph 76 of the paper, the Government explained its policy thus:

"Change has been slow and public demand for action has increased. It is one of the few instances in this White Paper where we believe the right response is Government action in the form of legislation.

We therefore intend to shift the balance significantly in favour of smoke-free environments. Subject to parliamentary timetables, we propose to regulate, with legislation where necessary, in order to ensure that:

• all enclosed public places and workplaces (other than licensed premises which are dealt with below) will be smoke-free."


The rest of paragraph 76 was devoted to restaurants, pubs, clubs and other licensed premises. Paragraph 77 continued:

"We intend to introduce smoke-free places through a staged approach:

  • • by the end of 2006, all government departments and the NHS will be smoke-free;

  • • by the end of 2007, all enclosed public places and workplaces, other than licensed premises (and those specifically exempted), will, subject to legislation, be smoke-free;

  • • by the end of 2008 arrangements for licensed premises will be in place.

We will use the intervening period of time to consult widely in the process of drawing up the detailed legislation, including on the special arrangements needed for regulating smoking in certain establishments — such as hospices, prisons and long stay residential care. In implementing this...

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