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Appellant) V the Scottish Ministers (Respondent) (Scotland

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Appellant) V the Scottish Ministers (Respondent) (Scotland Michaelmas Term [2012] UKSC 58 On appeal from: [2011] CSIH 19; [2008] CSOH 123 JUDGMENT RM (AP) (Appellant) v The Scottish Ministers (Respondent) (Scotland) before Lord Hope, Deputy President Lady Hale Lord Wilson Lord Reed Lord Carnwath JUDGMENT GIVEN ON 28 November 2012 Heard on 23 October 2012 Appellant Respondent Jonathan Mitchell QC James Mure QC Lorna Drummond QC Jonathan Barne (Instructed by Frank (Instructed by Scottish Irvine Solicitors Ltd) Government Legal Directorate Litigation Division) LORD REED (with whom Lord Hope, Lady Hale, Lord Wilson and Lord Carnwath agree) 1. This appeal raises a question as to the effect of a commencement provision in a statute which provides that provisions “shall come into force” on a specified date, and a consequential question as to the effect of a provision conferring upon Ministers the power to make regulations, where the provisions which are subject to the commencement provision cannot come into effective operation unless such regulations have been made. The legislation 2. These questions arise in relation to the Mental Health (Care and Treatment) (Scotland) Act 2003 (“the 2003 Act”). The relevant substantive provisions are contained in Chapter 3 of Part 17, comprising sections 264 to 273. That Chapter is concerned with the detention of patients in conditions of excessive security. 3. Section 264 is headed “Detention in conditions of excessive security: state hospitals”. It applies where a patient's detention in a state hospital is authorised by one of the measures listed in subsection (1)(a) to (d): that is to say, a compulsory treatment order, a compulsion order, a hospital direction or a transfer for treatment direction. By virtue of subsection (2), an application can be made to the Mental Health Tribunal for Scotland (“the Tribunal”) by any of the persons mentioned in subsection (6), including any patient falling within the scope of the section. By virtue of subsection (9), however, the Tribunal cannot determine any application without having first afforded the persons identified in subsection (10) the opportunity of making representations and of leading or producing evidence. Those persons include the “relevant Health Board”. If, on hearing the application, the Tribunal is satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital, it can then make an order declaring that the patient is being detained in conditions of excessive security, and specifying a period not exceeding three months during which the duties under subsections (3) to (5) are to be performed. The effect of such an order depends on whether the patient is a “relevant patient”, in which case subsection (3) applies, or is not such a patient, in which case subsection (4) is applicable. In either case, an obligation is imposed upon the relevant Health Board to identify a hospital which it considers, in agreement with the managers of the hospital (if the Board is not itself the manager) and, in the case of a relevant patient, the Ministers, is a hospital in which the patient could be detained in Page 2 appropriate conditions and in which accommodation is available for the patient. The expression “relevant patient” is defined by section 273. 4. Section 265 makes provision for further orders in the event that a patient is not transferred to a hospital following an order made under section 264(2); and section 266 makes provision for further orders in the event that a patient is not transferred following an order made under section 265. In each case, an order can be made only after affording the persons identified in section 264(10), including the relevant Health Board, the opportunity of making representations and of leading or producing evidence; and the effect of the order is to impose a duty upon the relevant Health Board, the nature of that duty being dependent upon whether the patient in question is or is not a relevant patient. 5. Section 267 makes provision for the recall of orders made under sections 264 to 266. Recall can be sought by the relevant Health Board, amongst others. An application for recall can be determined only after affording the persons identified in section 264(10), including the relevant Health Board, the opportunity of making representations and of leading or producing evidence. 6. Section 268 is headed “Detention in conditions of excessive security: hospitals other than state hospitals”. It applies where a “qualifying patient’s” detention in a “qualifying hospital” is authorised by one of the measures listed in subsection (1)(a) to (d): that is to say, a compulsory treatment order, a compulsion order, a hospital direction or a transfer for treatment direction. Apart from its applying to qualifying patients in qualifying hospitals rather than to patients in state hospitals, section 268 otherwise follows closely the scheme of section 264, mutatis mutandis. In particular, subsection (2) permits an application to the Tribunal to be made by a qualifying patient, and for the Tribunal to make an order declaring that the patient is being detained in conditions of excessive security and specifying a period not exceeding three months during which the duties under subsections (3) to (5) are to be performed. Those subsections impose an obligation upon the relevant Health Board to identify a hospital in which the patient could be detained in conditions not involving excessive security and in which accommodation is available. Provision is made for the expressions “qualifying patient” and “qualifying hospital” to be defined by regulations made under subsections (11) and (12), which are in the following terms: “(11) A patient is a ‘qualifying patient’ for the purposes of this section and sections 269 to 271 of this Act if the patient is of a description specified in regulations. Page 3 (12) A hospital is a “qualifying hospital” for the purposes of this section and sections 269 to 271 of this Act if – (a) it is not a state hospital; and (b) it is specified, or of a description specified, in regulations.” Subsection (13) provides that regulations under subsection (11) or (12) may have the effect that “qualifying patient” means a patient, and that “qualifying hospital” means a hospital other than a state hospital, or a part of a hospital. 7. Sections 270 and 271 make provision for further orders following upon an order under section 268, analogous to the provision made by sections 265 and 266. Section 271 makes provision for the recall of orders made under sections 268 to 271, analogous to the provision made by section 267. 8. Section 272 makes provision for the enforcement of orders made under sections 264 to 266, and 268 to 270, and is not material to the issues in the appeal. 9. Section 273 defines the expression “relevant patient”, and also makes provision for the expression “relevant Health Board” to be defined by regulations. In relation to the latter aspect, it provides: “In this Chapter — ‘relevant Health Board’ means, in relation to a patient of such description as may be specified in regulations, the Health Board, or Special Health Board — (a) of such description as may be so specified; or (b) determined under such regulations.” 10. In terms of section 326, regulations under the Act are to be made by statutory instrument. Regulations under section 268(11) and (12) are subject to affirmative resolution: that is to say, a draft of the instrument must be laid before the Scottish Parliament for approval, in accordance with section 326(4). Page 4 Regulations under section 273 are subject to negative resolution: in other words, the instrument is subject to annulment in pursuance of a resolution of the Scottish Parliament. In terms of section 329(1), “regulations” means regulations made by the Ministers. 11. The commencement provisions of the 2003 Act are contained in section 333. So far as material, it provides: “(2) Chapter 3 of Part 17 of this Act shall come into force on 1st May 2006 or such earlier day as the Scottish Ministers may by order appoint. (3) The remaining provisions of this Act, other than this section and section … 326 … shall come into force on such day as the Scottish Ministers may by order appoint. (4) Different days may be appointed under subsection (2) or (3) above for different purposes.” 12. The 2003 Act was passed by the Scottish Parliament on 20 March 2003 and received Royal Assent on 25 April 2003. Section 333 came into force on that date. All the remaining provisions of the Act, so far as not already in force, were brought into force on 5 October 2005, with the exception of Chapter 3 of Part 17. Sections 268 and 273 were brought into force on 6 January 2006, but “only for the purpose of enabling regulations to be made”: the Mental Health (Care and Treatment) (Scotland) Act 2003 (Commencement No 4) Order 2005 (SSI 2005/161). As I shall explain, Ministers possessed the power to make such regulations in any event, by virtue of paragraph 10 of Schedule 1 to the Scotland Act 1998 (Transitory and Transitional Provisions) (Publication and Interpretation etc of Acts of the Scottish Parliament) Order 1999 (SSI 1999/1379) (“the 1999 Order”), which applied to Acts of the Scottish Parliament between 1999 and 2010, and applies in particular to the 2003 Act. Regulations defining the expression “relevant Health Board” were made by the Ministers and came into force on 1 May 2006: the Mental Health (Relevant Health Board for Patients Detained in Conditions of Excessive Security) (Scotland) Regulations 2006 (SSI 2006/172). No regulations have been made under section 268(11) and (12) defining the expressions “qualifying patient” and “qualifying hospital”.
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