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Title : The smoking ban and the letter of the law
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The smoking ban and the letter of the law

Further to yesterday's post about the UK Supreme Court ruling that the 2006 Health Act does not actually make smoking illegal on government property, a little explanation is in order.

Having read the judgement (and the press summary), the essence of the case is that Paul Black, a sex offender serving an indeterminate sentence, wants access to the NHS Smoke-free Compliance phoneline so that he can report his fellow inmates for smoking in the common areas of his prison where smoking is banned.

This was granted in January 2014 but the government responded by saying this...

“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.”

Black took his case to a judicial review, which he won. The government then took it to the court of appeal where they won. Finally it ended up at the Supreme Court.

In her judgement, Lady Hale goes through the history of the smoking ban from its initial proposal in 2004 to the present day. She says, rightly, that at no point did the government ever imply that it would not apply to state property. On the contrary, it strongly implied that it would.

Some strong points can be made in favour of the conclusion that Parliament did indeed mean the Crown to be bound by the smoking ban. Although the government announced an intention to bring in a ban before the legislation was passed, there is no hint in the government publications leading up to the adoption of the policy that the Crown would not be bound by the legislation when it came into force (other than the exchange with the Health Committee referred to at para 14 above). If this had been made clear, one might have expected the anti-smoking campaigners and the trade unions and staff associations protecting the interests of civil servants and others working for the government to say something about it.

She then says:

Not surprisingly, perhaps, Her Majesty’s Prison Service took the view that the smoking ban did apply to them.

(Note that we are only talking about common areas of prisons. The 2006 Act expressly exempted prison cells.)

However, regardless of what the government implied or intended, it is the letter of the law that counts. By convention, laws do not bind the Crown unless they explicitly say so, and the Health Act 2006 does say so.

The classic and conventional statement of principle is that a statutory provision does not bind the Crown save by express words or “necessary implication”.

She then gives some case studies and discusses the legal debate around this issue, before concluding...

Had Parliament intended Part 1 of Chapter 1 of the 2006 Act to bind the Crown, nothing would have been easier than to insert such a provision into that Part. It would have made clear who could be prosecuted for the offences created.

... It might well be thought desirable, especially by and for civil servants and others working in or visiting government departments, if the smoking ban did bind the Crown. But the legislation is quite workable without doing so.

... Thus, not without considerable reluctance, I am driven to the conclusion that this appeal must fail. There is a presumption that Acts of Parliament only bind the Crown by express words or necessary implication.

Amusing as this all is, the case has clearly been won on a technicality. Presumably, the government will act in the new year to amend the legislation and take us back to where we thought we were before. Meanwhile, all the smoking bans on government property are essentially voluntary. You can, I assume, be kicked out of the building for breaking the rules, but you cannot be charged with an offence.

Lady Hale helpfully explains the difference between a voluntary smoking ban on crown property and a legal ban...

There are very significant differences between a smoking ban voluntarily imposed by an occupier or employer and the smoking ban imposed by the Act:

(i) The signs displayed have to say that “it is against the law” to smoke in these premises.

(ii) The occupier or manager is guilty of a criminal offence if such signs are not displayed.

(iii) It is a criminal offence to smoke in smoke-free premises.

(iv) The manager has to take reasonable steps to stop people smoking and is guilty of a criminal offence if he or she does not.

(v) Environmental health officers can be called in to enforce the ban, either against smokers, or against occupiers and managers, or both.

(vi) Environmental health officers have powers of entry to enable them to do so.

(vii) Individual non-smokers who complain about breaches of the ban do not have to bear the expense and burden of bringing proceedings to enforce it.

None of this applies to a ban voluntarily imposed in government premises. Any signs displayed cannot say that smoking is “against the law”. The ban is not backed up by criminal sanctions against smokers or managers. It is not backed up by the enforcement powers of environmental health officers. The only method of challenging a refusal to impose or to enforce a smoking ban would be to bring judicial review proceedings. It is unrealistic to expect workers and members of the public who are adversely affected by exposure to second-hand smoke in government premises to bring judicial review proceedings. These are expensive, time-consuming and inaccessible to most people, nor will they necessarily produce a remedy which is anything like as effective as the statutory enforcement process.

The case raises several questions, not least about why the government appealed this in the first place. Even if they were technically correct - as it turned out they were - what did they have to gain from it? And why haven't lawyers used this argument before when challenging smoking bans in prisons and psychiatric hospitals? Moreover, why aren't smoking bans not being enforced in the common areas of prisons in the first place? How hard can it be?

There is also the question of what happens to all the convictions for smoking on government property that have been amassed over the last ten years. Are they now unsafe? I assume they are. In which case, are those who have been fined due compensation?

Finally, what about all the government buildings that are covered in false warnings about smoking being illegal on the premises? Are there laws or departmental codes designed to prevent government agencies misleading the public in this way? I think we should be told.

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