Yesterday saw some good news:
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.
As Simon Clark was pointing out yesterday:
The 2006 Health Act did of course allow exemptions and they included, in particular, “any premises where a person has his home, or is living whether permanently or temporarily (including hotels, care homes, and prisons and other places where a person may be detained).
It seems to me that, given this ruling from Britain’s highest court, any attempt by the government to ban smoking in prisons is dead in the water, at least for the time being. And in fact it would seem that the government should now have to roll back the the bans that it has already introduced in a number of prisons.
It also seems to me that, if the government wishes to ban smoking in prisons, it will need to go back to Parliament with a new Bill in which the 2006 Health Act exemptions are removed. There will have to be another debate, and another vote. Chris Snowdon seems to agree on this:
Presumably, the government will act in the new year to amend the legislation and take us back to where we thought we were before.
So I’ve been wondering whether Theresa May’s Conservative government will, in effect, attempt to get even tougher on smoking than Tony Blair’s Labour government got back in 2006. And if they put a new Bill before the House, will MPs vote as enthusiastically as they did back in 2006 in favour of a prison smoking ban? And if MPs are going to vote to ban prisoners from smoking in their own homes, why not go the whole hog, and remove all the exemptions, and ban everyone from smoking in their own home?
I somehow suspect that Parliament may not be quite as enthusiastic to ban smoking in even more places than it did 10 years ago. The smoking ban was hailed as a great success back in 2006. But it seldom gets any mention these days. When Tony Blair was listing, a few months ago, his achievements as PM, the smoking ban didn’t even get a mention. Perhaps the closure of tens of thousands of pubs was a consequence of the ban that many MPs could not fail to notice. Perhaps also the appearance of a small but vocal smokers’ resistance movement (i.e. people like me) has not gone entirely unnoticed either.
I’ve never really understood why first David Cameron and then Theresa May have continued to support a smoking ban that most Conservative MPs voted against, particularly since it has emerged that David Cameron still smokes. The only explanation I have been able to come up with is that neither of them are/were Conservatives, but were in fact as radical as Blair and Brown and now Corbyn. It’s also why I expect to never see Theresa May take decisive steps to leave the EU: she has always been a Remainer.
Anyway, my take on it is that if the Government wants to ban smoking in prisons, it will have to go back to Parliament to get the mandate it never got in 2006, and which the Supreme Court has now ruled that it never had. But I’m no lawyer, and I wouldn’t be surprised if there is some other devious means whereby the government can proceed.
But aside from the matter of prisons (about which I have written to my MP several times), I’m now wondering why smoking is banned in hotels, given the 2006 Health Act specifically exempted them. Shouldn’t smokers staying in UK hotels now be able to light up in their own rooms? Same also for care homes and hospitals. One reason I never go anywhere is that I no longer feel welcome in any hotel. Might that change now?