Bryan-Heaney-0005_prvThe judgment of this case was handed down by the Supreme Court on 28 November 28 2012.

The question considered by the Court was whether the Scottish Executive—officially known as the Scottish Government since July 3, 2012 (Scotland Act 2012, s 12) — was obliged to bring forward regulations to make effective a statutory provision the Scottish Parliament had decided should come into force by a particular day.  


As I explained in my case preview, when the Scottish Parliament passed the Mental Health (Care and Treatment) (Scotland) Act 2003 it included a provision that allowed patients compulsorily detained in conditions of excessive security to challenge before the Mental Health Tribunal the level of security under which they were detained (Chapter 3 of Part 17).

The statute stated explicitly that patients in high-security, state hospitals could apply to the Tribunal (there is in fact only one such hospital in Scotland at Carstairs in Lanarkshire (the “StateHospital”).  In addition, it provided that “a qualifying patient’s” detention in a “qualifying hospital” could also apply to the Tribunal.  However, the provision left it to the Ministers to make regulations defining “qualifying patient” and “qualifying hospital”.

Accordingly, until regulations were made, “qualifying patients” detained under the mental health legislation in hospitals other than the State Hospital, namely “qualifying hospitals”, could not apply to the Mental Health Tribunal for Scotland for a declaration that they were being held in conditions of excessive security as it was not clear who the “qualifying patients” were, and what constituted a “qualifying hospital”. However, the regulations defining “qualifying patient” and “qualifying hospital” were never presented.

This means that patients in the high-security State Hospital have the right to apply in the body of the Act but, for want of regulations, those detained in medium-secure units, locked wards and the like, cannot make applications to the Tribunal.

The case centred around the commencement provision of the Mental Health (Care and Treatment) (Scotland) Act 2003 (section 333(2)) which provides:

“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.”


Mr M was a patient held in a locked ward in Glasgow. He applied to the Court of Session for a declarator that the Scottish Government was acting unlawfully by failing to present regulations that might define him as a “qualifying patient” and the hospital as a “qualifying hospital”. Mr M lost his case in the Court of Session and appealed to the Supreme Court.

The Supreme Court’s decision

Mr M’s appeal was successful.

Lord Reed wrote the judgment with which the other Justices agreed. The matter was one of statutory interpretation. When Parliament decided that a provision should “come into force” did it mean that it should become part of the law of the land or that it should be effective in practice? He said that on reading section 333(2) “the inference which one would naturally draw, unless the contrary intention appeared” was that Parliament intended the provision to be effective and not to be vox et praeterea nihil

In passing, Lord Reed dealt with the argument that Mr M should lose because, in the absence of regulations, he had no right to enforce. Lord Reed dismissed the Government’s argument, summarising it thus: “there is no duty to make regulations because no rights have been conferred; no rights have been conferred because no regulations have been made; and no regulations have been made because there is no duty to make regulations.”

The Scottish Government’s response

At First Minister’s Question Time on 6 December  2012, Alex Salmond was asked about the Supreme Court judgment which in effect, held that the Scottish Government had been acting unlawfully since May 1, 2006. He replied:“The Scottish courts, interpreting Scottish legislation, agreed with the Government’s position and found that there was no requirement to make regulations. It was on that basis that the appeal was contested in the Supreme Court.”

Between now and the 2014 referendum Mr Salmond will presumably make as much he can of “meddling” by UK institutions like the Supreme Court.  So this defeat for the Government might incidentally assist the “Yes campaign” and its desire to repatriate the final court of appeal.