Karl Anderson and Others v The Scottish Ministers and Another
| Jurisdiction | UK Non-devolved |
| Judge | Lord Slynn of Hadley,Lord Hope of Craighead,Lord Clyde,Lord Hutton,Lord Scott of Foscote |
| Judgment Date | 15 October 2001 |
| Neutral Citation | [2001] UKPC D5 |
| Court | Privy Council |
| Docket Number | No 3,DRA. Nos. 9, 10 and 11 of 2000 |
| Date | 15 October 2001 |
[2001] UKPC D5
Present at the hearing:-
Lord Slynn of Hadley
Lord Hope of Craighead
Lord Clyde
Lord Hutton
Lord Scott of Foscote
Privy Council
I have had the advantage of reading the text of the speeches of my noble and learned friends Lord Hope of Craighead and Lord Clyde. I fully agree that these appeals should be dismissed for the reasons which they have given. On what is the core issue it seems to me clear that the provisions of section 1 of the Mental Health (Public Safety and Appeals) (Scotland) Act 1999 are not incompatible with article 5(1)(e) of the Convention: the continued detention of restricted patients in a hospital on grounds of public safety is not dependent on their condition being capable of treatment. There is nothing in article 5 to require that such detention be so restricted.
These are three appeals under paragraph 12 of Schedule 6 to the Scotland Act 1998 against the determination of a devolution issue by the Inner House of the Court of Session (in the First Division, comprising the Lord President (Rodger), Lady Cosgrove and Lord Philip) on a reference under paragraph 7 of that schedule from the sheriff court at Lanark where the State Hospital at Carstairs is situated: A v The Scottish Ministers 2000 SLT 873. As Lady Cosgrove said at the outset of her opinion at p 895D-E, they represent a significant milestone in the development of Scots law.
The milestone is to be seen in the fact that we are concerned in this case with the first Act of the Scottish Parliament. The Bill which became the Mental Health (Public Safety and Appeals) (Scotland) Act 1999 was introduced on 31 August 1999. The Parliament, which was opened on 1 July 1999, met to conduct business for the first time on 1 September 1999. Stage 1 of the Bill took place the following day. Decisions were taken which authorised an emergency debate on the Bill and established the timetable. The Bill passed through all its remaining stages on 8 September 1999, and it received the Royal Assent on 13 September 1999. The swift passage of this measure was achieved, with commendable despatch on the part of all concerned, at the very outset of the work of the new Parliament. But it has the distinction too of having attracted the first challenge to the Parliament's legislative competence under section 29 of the Scotland Act 1998. The challenge has been made on the ground that its provisions are incompatible with the appellants' Convention rights. The Court is being asked for the first time to strike down a provision which the Parliament has enacted.
The legislation
I should like to say a word first about the structure of the legislation which provides the context for the determination of a devolution issue as to the legislative competence of the Scottish Parliament. The issue has been defined by the appellants in these terms:
"Is section 1 of the Mental Health (Public Safety and Appeals)(Scotland) Act 1999 a provision (in whole or in part) outwith the legislative competence of the Scottish Parliament by virtue of section 29(2)(d) of the Scotland Act 1998 and accordingly not law, in terms of section 29(1) thereof."
Section 29(1) of the 1998 Act provides that an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. Section 29(2) defines the limits on that legislative competence. Paragraph (d) of that subsection provides that a provision is outside that competence if it is incompatible with any of the Convention rights. Section 126(1) provides that the expression "the Convention rights" has the same meaning as in the Human Rights Act 1998. Those are the rights set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms to which effect is given by section 1 of the Human Rights Act 1998 for the purposes of that Act. Among these rights are those in article 5 of the Convention which are concerned with the right to liberty.
The Advocate General drew attention to various safeguards which have been built into the Scotland Act 1998 to ensure so far as possible that there is no breach of the limits of the Parliament's legislative competence. These are to be found in sections 31 and 33 of the Act. Section 31(1) provides that a member of the Scottish Executive who is in charge of a Bill shall, before its introduction, state that in his view it is within the legislative competence of the Parliament. This corresponds to section 19 of the Human Rights Act 1998, which requires a Minister of the Crown before second reading of a Bill in either House of the Parliament at Westminster to make a statement of compatibility. Section 31(2) requires the Presiding Officer, on or before the introduction of the Bill, to decide whether the Bill would be within the Parliament's legislative competence and to state his decision. This enables him to issue a warning to the Parliament if he is of the opinion the Bill would be outside its competence.
Important though these two safeguards may be in practice to the work of the Scottish Parliament, they are no more than statements of opinion which do not bind the judiciary. With that in view section 33 enables the Advocate General, the Lord Advocate or the Attorney General to refer the question of whether a Bill or any provision of a Bill would be within the Parliament's legislative competence to the Judicial Committee for its decision. This procedure is available to the Law Officers after the passing of the Bill but before it receives Royal Assent: see section 32(2). In the present case the Law Officers notified the Presiding Officer that they did not intend to make a reference. This enabled the Presiding Officer to submit the Bill for Royal Assent without delay. But the fact that the Law Officers decided not to test the matter in this way is of no consequence at this stage. The court has power to deal with it as a devolution issue under Schedule 6 to the Act after the Bill has been enacted if a member of the public claims that the provision was outside the Parliament's legislative competence.
Before the court reaches the stage of making a determination that an Act of the Scottish Parliament or any provision in such an Act is outside the legislative competence of the Parliament there are a series of questions that it may have to address. These are to be found in sections 100 to 102 of the Scotland Act 1998.
a. A person cannot bring proceedings on the ground that an "act", which includes making any legislation, is incompatible with the Convention rights unless he would be a victim for the purposes of article 34 of the Convention if proceedings in respect of the act were brought in the European Court of Human Rights: see section 100(1). So the first question is whether the person by whom the challenge is made is or would be a victim of the provision which he says is outside the legislative competence of the Parliament.
b. Any provision of an Act of the Scottish Parliament which could be read in such a way as to be outside competence is to be read as narrowly as is required for it to be within the legislative competence of the Parliament, if such a reading is possible, and is to have effect accordingly: see section 101. The aim of this provision is to enable the court to give effect to legislation which the Scottish Parliament has enacted wherever possible rather than strike it down. So the second question is whether the provision which is in issue can be read and given effect in such a way as to avoid the incompatibility.
c. The court has power, if it decides that an Act of the Scottish Parliament, or any provision in such an Act, which cannot be read compatibly is outside its legislative competence, to make an order removing or limiting the retrospective effect of the decision or suspending its effect for any period and on any conditions to allow the defect to be corrected: see section 102(2). The power to suspend enables the court to give the Scottish Parliament time to reconsider the legislation and to amend it in such a way as to remove the incompatibility. So the third question is whether the case is one where one or other of the orders contemplated by section 102(2) should be made as part of the determination of the devolution issue.
Each of these three questions is, to a greater or lesser degree, in play in the present case. They are, of course, bound up with the underlying question as to whether section 1 of the Mental Health (Public Safety and Appeals) (Scotland) Act 1999 ("the 1999 Act"), or any part of it, is incompatible with the patients' Convention rights. But I think that it is important not to lose sight of them, especially in the case of Brian Doherty which presents certain difficulties which do not apply in the other two cases of Karl Anderson and Alexander Reid.
The facts
The facts have been described by my noble and learned friend Lord Clyde, and I gratefully adopt what he has said about them. As he has indicated, the 1999 Act was passed in response to the decision by the Sheriff at Lanark in Ruddle v Secretary of State for Scotland, 1999 GWD 29-1395, following the decision of the House of Lords in R v Secretary of State for Scotland, 1999 SC (HL) 17, to grant an absolute discharge to a restricted patient from the State Hospital. It was an emergency measure, which was intended to prevent the release from the hospital for the time being of other patients in that category whose continued detention in a hospital was shown to be necessary on grounds of public safety.
The Scottish Ministers made it clear in the debates...
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