When do Statutes bind the Crown (aka the Government)?

The Supreme Court (Lady Hale PSC, with whom the other Justices agreed) answered this question today in R (Black) v Secretary of State for Justice [2017] UKSC 81 thus:

"36... (1) The Crown is not bound by a statutory provision except by express words or necessary implication.

(2) This is not an immunity from liability, strictly so-called, but a rule of statutory interpretation.

(3) The goal of all statutory interpretation is to discover the intention of the legislation.

(4) That intention is to be gathered from the words used by Parliament, considered in the light of their context and their purpose. In this context, it is clear that Lord Hobhouse’s dictum in R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2002] UKHL 21; [2003] 1 AC 563, at para 45, that 'A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context' must be modified to include the purpose, as well as the context, of the legislation.

(5) In considering the intention of the legislation, it is not enough that it is intended for the public good or that it would be even more beneficial for the public if the Crown were bound.

(6) However, it is not necessary that the purpose of the legislation would be 'wholly frustrated' if the Crown were not bound. In the Bombay case, it is clear that the Board was only using this as one example of where the Crown would be bound by necessary implication. In this case, it is accepted that the Liverpool Coroner’s case was rightly decided. The purpose of the Coroners Act would not have been 'wholly frustrated' had it not bound the Crown. But one very important purpose of the Act would have been frustrated: that was to render the inquest process compliant with the United Kingdom’s obligations under the European Convention on Human Rights, so that deaths for which the state might bear some responsibility could be properly investigated.

(7) In considering whether the purpose of the Act can be achieved without the Crown being bound, it is permissible to consider the extent to which the Crown is likely voluntarily to take action to achieve it. Inaction cannot be assumed. It may be that the Act’s purpose can as well be achieved by the Crown exercising its powers properly and in the public interest. But if it cannot, that is a factor to be taken into account in determining the intention of the legislation.

37. In my view, that is all that need be said. It is neither necessary nor desirable to add further glosses to the test, or to characterise it by adjectives such as 'strict'. The question is whether, in the light of the words used, their context and the purpose of the legislation, Parliament must have meant the Crown to be bound."

NB In Hong Kong, section 66(1) of the Interpretation and General Clauses Ordinance (Cap 1) similarly stipulates that:

"No Ordinance (whether enacted before, on or after 1 July 1997) shall in any manner whatsoever affect the right of or be binding on the State [(which includes, among other things, the Hong Kong Government: section 3)] unless it is therein expressly provided or unless it appears by necessary implication that the State is bound thereby."