RM (AP) v The Scottish Ministers (Scotland)

The Supreme Court held that where Parliament has fixed a date by which provisions of an Act are to "come into force", it is ordinarily to be inferred that Parliament intended those provisions to be in effective operation by that date as well as to have legal force. Where the provisions cannot operate without subordinate regulations, a discretion to make those regulations must be exercised so as to give effect to Parliament's intention; a failure to do so may be unlawful. Applying that principle to Chapter 3 of Part 17 of the Mental Health (Care and Treatment) (Scotland) Act 2003, the court concluded that although sections 268 to 271 technically came into force on 1 May 2006, the Scottish Ministers were under a duty to make the regulations required by section 268(11) and (12) by that date so as to bring those provisions into effective operation. Their failure to make those regulations was unlawful.

The appellant is a patient detained under a compulsion order in a non-state hospital who wished to apply to the Mental Health Tribunal for Scotland under section 268(2) of the Mental Health (Care and Treatment) (Scotland) Act 2003 for an order declaring that he was detained in conditions of excessive security. Regulations defining "qualifying patient" and "qualifying hospital" under section 268(11) and (12) had not been made. The appellant sought judicial review: a declarator that the Ministers' failure to draft and lay the regulations before the Scottish Parliament before 1 May 2006 was unlawful and an order requiring them to lay such regulations within a specified period.

The procedural history was that the Lord Ordinary refused the petition (2008 SC OH 123), an Extra Division of the Inner House refused a reclaiming motion (2011 CSIH 19), and the case was brought to the Supreme Court.

The principal legal issues were: (i) the effect of a commencement provision stating that provisions "shall come into force" on a specified date, (ii) the distinction between a provision's being legally "in force" and its being in effective operation, (iii) whether Ministers' discretion to make regulations could be exercised so as to frustrate Parliament's intention that the provisions be effective by the commencement date, and (iv) the appellant's standing to bring the challenge.

The court analysed statutory interpretation and commencement law (including the Interpretation Act 1978 and equivalent provisions for Acts of the Scottish Parliament), and authorities concerning powers to make subordinate legislation and their lawful exercise (for example Padfield and cases concerning section 37 of the 1889 Act). It concluded that where Parliament fixes a commencement date it is reasonable to infer that Parliament intended the provisions to be practically effective by that date. A discretionary power to make regulations must not be used to frustrate the object of the Act; accordingly the Ministers had an obligation to exercise their regulatory power so as to bring Chapter 3 of Part 17 into effective operation by 1 May 2006. The court also held that the appellant had sufficient interest to bring judicial review. The court allowed the appeal and granted a declarator that the Ministers' failure to draft and lay regulations under section 268(11) and (12) before 1 May 2006, and their continued failure to do so, was unlawful. The court noted practical and constitutional limits on remedies (it did not order the Ministers to lay regulations, but granted declaratory relief).

Appeal allowed. The court held that when Parliament fixed 1 May 2006 as the date on which Chapter 3 of Part 17 of the 2003 Act "shall come into force", it was reasonable to infer that Parliament intended those provisions to be in effective operation by that date. Because the provisions could not operate without regulations under section 268(11) and (12), the Ministers were under a duty to exercise their regulatory power by that date. The Ministers' failure to make those regulations by 1 May 2006, and their continued failure thereafter, was unlawful; declarator was granted accordingly.

Lord Ordinary (Court of Session, Outer House) refused the petition for judicial review: M v Scottish Ministers [2008] CSOH 123; an Extra Division of the Inner House refused the reclaiming motion: M v Scottish Ministers [2011] CSIH 19; the appellant appealed to the Supreme Court, which allowed the appeal ([2012] UKSC 58).