Ls For Judicial Review Of The Failure Of The Scottish Ministers To Draft And Lay Before The Scottish Parliament Regulations Under The Mental Health (care And Treatment)(scotland) Act 2003
| Jurisdiction | Scotland |
| Judge | Lord Turnbull |
| Neutral Citation | [2015] CSOH 60 |
| Year | 2015 |
| Published date | 21 May 2015 |
| Date | 21 May 2015 |
| Court | Court of Session |
| Docket Number | P1157/14 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 60
P1157/14
OPINION OF LORD TURNBULL
In the petition of
LS
Petitioner;
for
Judicial Review of the failure of the Scottish Ministers to draft and lay before the Scottish Parliament regulations under the Mental Health (Care and Treatment) (Scotland) Act 2003
Petitioner: JJ Mitchell QC, Irvine; Drummond Miller LLP
Respondent: Wolffe QC, Dean of Faculty, Ross; Scottish Government Legal Directorate
21 May 2015
The petitioner’s circumstances
[1] The petitioner LS is a 20-year-old young man who is presently detained in the Rowanbank Clinic by virtue of a compulsory treatment order granted in terms of section 64 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (“the 2003 Act”). He was first transferred to Rowanbank from Polmont Young Offenders Institution in May 2012 under an assessment order made in terms of section 52D of the Criminal Procedure (Scotland) Act 1995. He was then made subject to a short‑term detention certificate in terms of section 44 of the 2003 Act before the compulsory treatment order was made in August 2012. That order has subsequently been extended on a number of occasions. No question as to the legality of any of these certificates, orders or decisions arises.
[2] The Rowanbank Clinic is an inpatient psychiatric treatment facility which operates a medium level of security. The petitioner wishes to challenge the level of security under which he remains detained but there is, as yet, no effective mechanism by which he can do so before the Mental Health Tribunal for Scotland (“the tribunal”). The orders which the petitioner originally sought are set out in his petition as follows:
“3(i) Declarator that the continuing failure of the Scottish Ministers to draft and lay before the Scottish Parliament regulations under section 268 (11) and (12) of the 2003 Act, even if such regulations have only interim effect, is unlawful et separatim in violation of Article 5 et separatim Article 14 when taken with Article 5 of the European Convention on Human Rights and Fundamental Freedoms;
(ii) An order ordaining the Scottish Ministers to draft and lay before the Scottish Parliament regulations under section 268 (11) and (12) of the 2003 Act within 28 days or such other period as the Court considers appropriate;”
The legislative background
[3] The parties to this action were agreed as to the content of the legislative background within which the petitioner’s argument was presented.
[4] Chapter 3 of the 2003 Act provides a structure within which patients detained in a state hospital, or other hospitals, may raise before the tribunal the question of whether they are being detained in conditions of excessive security and permits the tribunal to make an order which has the effect of ensuring that the patient is transferred to a hospital in which he can be detained in appropriate conditions. The 2003 Act deals separately within chapter 3 with, on the one hand, patients who are detained in a state hospital, and, on the other hand, patients who are detained elsewhere. Section 264 of the 2003 Act permits a patient detained in a state hospital to apply to the tribunal to challenge the level of security with which he is being detained. That section of the Act was brought into force on 1 May 2006.
[5] Section 268 of the 2003 Act is designed to give a similar right of challenge to patients who are detained in hospitals other than state hospitals. It applies to “qualifying patients” who are detained in a “qualifying hospital.” Before this section can have operative effect the two relevant terms require to be defined in regulations to be made by the Scottish Ministers. They have had power to do so since 6 January 2006. Section 326 of the 2003 Act provides that any such regulations are to be made by statutory instrument a draft of which must be laid before the Scottish Parliament for approval. No such regulations have yet been laid before Parliament and patients such as the petitioner who are detained other than in a state hospital have no ability to challenge the level of security within which they are detained before the tribunal.
[6] In its decision in RM v Scottish Ministers 2013 SC (UKSC) 139 the Supreme Court decided that the failure by the Scottish Ministers to draft and lay such regulations before the Scottish Parliament prior to 1 May 2006 and the continued failure to do so since that date was and is unlawful. The decision of the Supreme Court was issued on 28 November 2012. On 19 June 2014, the Mental Health (Scotland) Bill was introduced to the Scottish Parliament. This is the method by which the Scottish Ministers have sought to address the unlawfulness identified by the Supreme Court. If enacted, this legislation will provide for amendments to the 2003 Act which will include amendments designed to address the application of section 268. The Bill however still contemplates the definition of a “qualifying hospital” being provided by regulation. On 24 April 2015 a draft set of regulations was prepared and presented to the Health and Sport Committee of the Scottish Parliament. Those draft regulations identify three hospitals as falling within the definition of “qualifying hospital”, one of which is the Rowanbank Clinic.
The petitioner’s case
[7] On behalf of the petitioner, Mr Mitchell QC presented his common law case relying upon the declarator of unlawfulness pronounced by the Supreme Court in RM. He pointed out that it had been decided in that case that the Scottish Ministers were under a duty to exercise their power to make the necessary regulations no later than 1 May 2006. He observed that by letter dated 10 December 2012, the solicitor for the respondents stated that they accepted the ruling that the Scottish Ministers acted unlawfully and that they were now taking steps to address that situation. A year and a half passed before the 2014 Bill was introduced and, on 27 March 2015, nearly a further year later, the respondents stated to Parliament that they were developing regulations and said:
“this is a very technical and complex matter and it is important that sufficient and full consideration is given to precisely how the regulations are shaped.”
That having been said, Mr Mitchell observed that the draft regulations presented to the Health and Sport Committee of the Scottish Parliament on 24 April 2014 were in fact remarkably concise, consisting of little more than a few lines of text. This he suggested demonstrated that appropriate regulations under the 2003 Act could now be drafted very easily and very quickly.
[8] The petitioner submitted that the respondents must abide by the decision of the Supreme Court and a failure to do so would be a denial of the rule of law which brought the system of justice itself into disrepute. The executive does not obey the law as matter of grace and is under the same duty of obedience to the law as it stands at any given time as is any citizen – R (Evans ) v Attorney General [2015] UKSC 21, Alleyne v Attorney General of Trinidad and Tobago [2015] UKPC 3, M v Home Office [1994] 1 AC 377. The duty of the respondents was to take steps to remedy the unlawful conduct identified by the Supreme Court in RM and to do so within the “minimum period of time”. Support for the “minimum period of time” formulation could be found in the analysis undertaken by the Supreme Court of Canada in the Reference by the Governor in Counsel concerning language rights under the Manitoba Act reported at [1985]1 SCR 721.
[9] In light of the history founded upon by Mr Mitchell he contended that it was not strictly necessary for the court to grant the declarator which he sought in paragraph 3(i) of this petition. The failure of the respondents to comply with the decision of the Supreme Court already entitled him to an order for implement at common law. He submitted that, consistent with the duties identified in the authorities mentioned, it would be reasonable to expect the respondents to be able to draft regulations in terms of the 2003 Act immediately. All that would be necessary would be a minor adjustment to the terminology already embodied in the draft regulations produced on 24 April. There would be ample time to lay these new draft regulations before the Health and Sport Committee of the Scottish Parliament at its meeting of either 19 or 26 May. That committee could report to Parliament shortly thereafter and Parliamentary approval of the regulations could be obtained before the recess scheduled for 27 June. The regulations could then be in force within a matter of days thereafter. Accordingly, he invited me to make an order for implement in terms of paragraph 3(ii) of his petition.
[10] Mr Mitchell also submitted that the respondents’ failure to make regulations under the 2003 Act was incompatible with his rights in terms of the Convention. However, this aspect of his case seemed to me to be presented as a secondary, or fall back proposition. Whilst the case as contained within the petition included an argument to the effect that the petitioner’s article 5 rights had been infringed this was not insisted on during the course of the oral argument. Mr Mitchell invited me, if granting declarator, to do so under deletion of the words in paragraph 3(i) “Article 5 et separatim”, the effect being to leave only his argument that the petitioner’s article 14 rights had been infringed.
[11] He advanced two contentions in support of this proposition. First, that it was beyond question that the petitioner’s detention fell within the ambit of article 5, and second, that the failure to provide a right to a patient detained in Rowanbank Clinic to challenge the conditions of his detention before the tribunal, when such a right was available to a patient detained in the state hospital at Carstairs, was discrimination on the basis of status contrary to article 14.
The respondents’ case
[12] On behalf of the respondents,...
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