RM v Scottish Ministers  UKSC 58,  MHLO 133
"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. ... 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." [Detailed summary available.]
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
STATUTE — Commencement — Date — Provision enabling qualifying detained mental patients to apply for declaration that they were being held in conditions of excessive security — Provisions to come into force by specified date — Regulations required to define qualifying patients — No regulations made by specified date or at all — Whether failure to make regulations unlawful — Mental Health (Care and Treatment) (Scotland) Act 2003 (2003 asp 13), ss 268(11)(12), 333(2)
M v Scottish Ministers
B;  WLR (D) 365
SC(E): Lord Hope of Craighead DPSC, Baroness Hale of Richmond, Lord Wilson, Lord Reed and Lord Carnwath JJSC: 28 November 2012
It had been unlawful for the Scottish Ministers to fail to make the necessary regulations defining a who was a “qualifying patient” detained at a “qualifying hospital” and thus entitled to apply for a declaration from the Mental Health Tribunal for Scotland that he was a person detained under conditions of excessive security pursuant to section 268 of the Mental Health (Care and Treatment) (Scotland) Act 2003 which came into force on 1 May 2006 pursuant to section 333(2) of that Act.
The Supreme Court so held in allowing the appeal of the petitioner, RM, who was a person detained under a compulsion order at a psychiatric hospital, from a decision of an Extra Division of the of the Inner House of the Court of Session (Lord Hardie, Lord Bonomy and Lord Marnoch) 2011 SLT 787 refusing his reclaiming motion from the refusal of the Lord Ordinary, Lord Carloway 2008 SLT 928, of his petition for judicial review by way of a declarator to such effect.
LORD REED JSC (with whom LORD HOPE OF CRAIGHEAD DPSC, BARONESS HALE OF RICHMOND, LORD WILSON and LORD CARNWATH JJSC agreed) said that the distinction which the Scottish Ministers had sought to draw between a provision being in force, in the sense that it had become law, on the one hand, and its being in effective operation, on the other hand, was in principle a valid distinction. That conclusion did not however permit one to infer, from a commencement provision in the form of section 333(2), that Parliament had not intended that the provisions to which it applied should be brought into effective operation on the date when they came into force. On the contrary: the inference which one would naturally draw, unless the contrary intention appeared, was that Parliament had intended the provisions to be in effective operation as soon as they were brought into force. There was nothing to indicate that the Scottish Parliament had intended that the provisions should come into force on 1 May 2006 but might nevertheless remain a dead letter for an indefinite period thereafter. In the absence of any such indication, it was reasonable to infer that the Scottish Parliament had intended that the provisions in question should be in effective operation, as well as being in force, on 1 May 2006. It followed that, although the Ministers had had a discretion as to the manner in which they exercised their power to make the necessary regulations, they had been under a duty to exercise that power no later than 1 May 2006. In the event, the Ministers’ failure to exercise their power to make the necessary regulations by 1 May 2006, or since that date, had had the result that, although section 268 was technically in force, it had no more practical effect now than it had had on the date, more than nine years ago, when the 2003 Act had received Royal Assent. The Ministers’ failure to make the necessary regulations had thus thwarted the intention of the Scottish Parliament. It therefore was, and remained, unlawful.
Appearances: Jonathan Mitchell QC and Lorna Drummond QC (instructed by Frank Irvine Solicitors Ltd, Glasgow) for the petitioner; James Mure QC and Jonathan Barne (instructed by Solicitor to the Scottish Government, Edinburgh) for the Scottish Ministers.
Reported by: Ms B L Scully, Barrister.
© 2012. The Incorporated Council of Law Reporting for England and Wales.