RM (AP) v The Scottish Ministers (Scotland)

A statutory provision may be in force as law without being in effective operation. Nevertheless, where Parliament fixes the date by which a statutory scheme must come into force, the ordinary inference is that it intends the scheme to operate effectively from that date, unless a contrary intention appears.

A discretionary power to make regulations must be exercised where non-exercise would frustrate that legislative intention. The duty is not confined to cases where regulations are required to make an existing individual right effective. It also arises where regulations are necessary for the proper functioning of the statutory scheme.

A patient detained under a compulsion order in a non-state hospital wished to apply to the Mental Health Tribunal for Scotland on the ground that he was detained in conditions of excessive security. Such an application under section 268 of the Mental Health (Care and Treatment) (Scotland) Act 2003 depended upon regulations defining “qualifying patient” and “qualifying hospital”. The Scottish Ministers had made no such regulations.

The Lord Ordinary refused judicial review: M v Scottish Ministers [2008] CSOH 123. The Inner House refused the reclaiming motion: M v Scottish Ministers [2011] CSIH 19. Both courts considered that section 268 created no rights until regulations identified the patients and hospitals to which it applied.

The central issue was whether the statutory requirement that the relevant chapter come into force by 1 May 2006 obliged the Ministers to make the regulations required for its effective operation by that date.

1. The appeal was allowed unanimously. Lord Reed delivered the judgment, with which Lord Hope, Lady Hale, Lord Wilson and Lord Carnwath agreed. The interlocutor of the Extra Division was recalled. The court declared that the Ministers’ failure to draft and lay the regulations before 1 May 2006, and their continued failure thereafter, was and is unlawful.

2. A distinction exists between a provision being in force as part of the law and being in effective operation as a practical matter. Section 333(2) of the Mental Health (Care and Treatment) (Scotland) Act 2003 automatically brought Chapter 3 of Part 17 into force as law on 1 May 2006. Its language did not itself mean that the provisions became practically effective on that date.

3. That distinction did not resolve the question of legislative intention. Where Parliament fixes a commencement date, the natural inference is that it intends the provision to have practical consequences from that date, unless a contrary intention appears. A fixed date ordinarily shows that Parliament has determined the time required for preparatory measures and has not left commencement indefinitely to executive discretion.

4. Every right of application under Chapter 3 depended upon regulations. Section 264 required regulations defining the relevant Health Board before the Tribunal could determine an application. Section 268 likewise required regulations defining qualifying patients and qualifying hospitals before an application could be made. The legislation provided no basis for treating the state-hospital provisions as intended to operate by 1 May 2006 while leaving the other-hospital provisions ineffective indefinitely.

5. The Scottish Parliament therefore intended all of Chapter 3 to be in effective operation by 1 May 2006. Although the Ministers retained discretion over the contents of the regulations, they were obliged to exercise the regulation-making power by that date. A discretionary statutory power must not be left unexercised where that would frustrate the object of the Act.

6. Such an obligation is not confined to cases where regulations are needed to make an existing individual right effective. It may also arise where regulations are necessary to achieve another legislative result or to make a statutory scheme function properly. The Ministers’ contrary argument was circular because the asserted absence of rights resulted from the very failure to make the regulations.

7. The appellant had sufficient interest to seek judicial review. He was detained under a compulsion order and might benefit from regulations made under section 268(11) and (12).

1. United Kingdom Supreme Court: Appeal allowed unanimously; the interlocutor of the Extra Division was recalled and declarator granted: [2012] UKSC 58.
2. Inner House of the Court of Session: Reclaiming motion refused on the basis that section 268 conferred no rights until regulations defined the relevant patients and hospitals: [2011] CSIH 19.
3. Outer House of the Court of Session: The Lord Ordinary refused the petition for judicial review on substantially the same basis: [2008] CSOH 123; 2008 SLT 928.