A prisoner suffering from poor health has lost his attempt to enforce the smoking ban in English and Welsh jails after the supreme court ruled that crown premises are effectively exempt from the enforcement of health regulations.

The unanimous judgment from the UK’s highest court will prevent the inmate, Paul Black, from calling the NHS’s smoke-free compliance line to report breaches of the ban.

Lady Hale, the president of the supreme court, said she was driven with “considerable reluctance” to conclude that when parliament passed the 2006 Health Act, prohibiting smoking in offices, bars and enclosed areas, it did not mean to extend it to government or crown sites.

The standard practice is that a statutory provision does not bind the crown unless legislation adopts words explicitly stating so or by what is known as “necessary implication”.

“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,” Hale explained.

“The report of the health committee [at the time] does indicate that parliament was alive to the question of whether the smoking ban would bind the crown and aware of the case for further exemptions if the act were to do so.

“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,” she added. “But the legislation is quite workable without doing so.”

Black, a non-smoker, is serving an indeterminate sentence of imprisonment at HMP Wymott. He has a number of health problems that are exacerbated by tobacco smoke and complained that the smoking ban was not being properly enforced in the common parts of the prison.



He issued proceedings for judicial review of the secretary of state’s refusal to provide confidential and anonymous access to the NHS smoke-free compliance line to prisoners. This would have enabled prisoners to report breaches of the smoking ban to the local authority charged with enforcing it.

Black won his claim in the high court but lost at the court of appeal. The Ministry of Justice has so far phased in smoking bans in more than half of the 120 prisons in England and Wales.

“I am disappointed with the judgment,” he said. “Throughout this case, I simply wished non-smoking prisoners and prison staff to have the same level of protection from the risks of second hand cigarette smoke as non-smokers living in the wider community.”



Sean Humber, head of the prison law team at the law firm Leigh Day who represented Black, said: “Why shouldn’t those living, working or visiting government properties be subject to the same laws, and indeed benefit from the same legal protections, as the rest of us?

“This judgment has far wider implications than simply the issue of smoking in prisons. It confirms that thousands of government properties, including, for example, courts and jobcentres, are not covered by the provisions of the Health Act prohibiting smoking in enclosed places. While many of these buildings even have signs saying it is against the law to smoke in them, these turn out to be incorrect.”