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THE PRESUMPTION THAT LEGISLATIVE PROVISIONS DO NOT BIND THE CROWN: PROPOSED MODIFICATION GOES UP IN SMOKE

Accepted version
Peer-reviewed

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Article

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Abstract

Black, a prisoner at HMP Wymott, was concerned that passive smoking was damaging his health. He requested that the NHS Smoke-Free Compliance Line (SFCL) be installed in prisons, enabling him to report breaches of the smoking ban found in Part 1 of the Health Act 2006. He followed up his request with a pre-action protocol for judicial review, which initially resulted in the prison issuing instructions to allow Black access to the SFCL. However, Black’s victory was short-lived. The Secretary of State replied to the pre-action protocol letter that Part 1 of the Health Act 2006 did not bind the Crown. Therefore the SFCL had no statutory role to play in the enforcement of the smoking ban in State prisons. Black then brought an action for judicial review against the Secretary of State’s letter. This raised an important constitutional issue - how far does legislation bind the Crown?

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Keywords

48 Law and Legal Studies

Journal Title

CAMBRIDGE LAW JOURNAL

Conference Name

Journal ISSN

0008-1973
1469-2139

Volume Title

77

Publisher

Cambridge University Press (CUP)