The pursuer was held in a secure mental hospital. When moved to a highersecurity section, he challenged the move. He lost but then was unable to make an apeal as allowed iunder the 2003 Act because the Scottish Parliament had not created the appropriate Regulations.
Held: The appeal succeeded: ‘the Ministers’ failure to exercise their power to make the necessary regulations under section 268(11) and (12) of the 2003 Act by 1 May 2006, or since that date, has had the result that, although sections 268 to 271 are technically in force, they have no more practical effect today than they had on the date, more than nine years ago, when the 2003 Act received Royal Assent. The Ministers’ failure to make the necessary regulations has thus thwarted the intention of the Scottish Parliament. It therefore was, and is, unlawful.’
Lord Hope, Deputy President, Lady Hale, Lord Wilson, Lord Reed, Lord Carnwath
[2012] UKSC 58, 2012 GWD 40-774, [2012] 1 WLR 3386, [2012] WLR(D) 365, UKSC 2011/0212
Bailii, Bailii Summary, SC Summary, SC
Mental Health (Care and Treatment) (Scotland) Act 2003, Interpretation Act 1978, Interpretation and Legislative Reform (Scotland) Act 2010
Scotland
Citing:
Outer House – RM v The Scottish Ministers SCS 27-Aug-2008
The petitioner, a detained mental patient challenged the validity of orders made by the Mental Health Tribunal established under the 2003 Act. He said that, the respondents having not passed regulations providing complete processes for the . .
Appeal from – RM, Re Judicial Review SCS 21-Mar-2012
The applicant was detained in a mental hospital. After losing a challenge to being moved to a higher security section he found that he was unable to appeal because the Scottish Parliament had not passed Regulations proving the structure for an . .
Cited – Julius v Lord Bishop of Oxford and Another HL 23-Mar-1880
A statute enacted that with regard to certain charges against any Clerk in Holy Orders it ‘shall be lawful’ for the Bishop of the diocese ‘on the application of any party complaining thereof’ to issue a commission for enquiry.
Held: The words . .
Cited – Singh (Pargan) v Secretary of State for the Home Department HL 10-Mar-1993
An issue arose as to whether the Secretary of State was required by section 18 of the Immigration Act 1981 to make regulations concerning the giving of notice of a decision for the purposes of appeal. if regulations were not made, the right of . .
Cited – Regina v Secretary of State for the Home Department ex parte Fire Brigades Union HL 5-Apr-1995
Parliament had passed the 1988 Act which provided for a new Criminal Injuries Compensation Scheme. Instead of implementing the Act, the Home Secretary drew up a non-statutory scheme for a tarriff based system by using prerogative powers. The . .
Cited – Regina v Secretary of State for Home Department Ex Parte Fire Brigades Union and Others CA 10-Nov-1994
The Home Secretary’s non-statutory scheme for the compensation for criminal injuries was unlawful pending implementation of the Act. It amounted to an abuse of power. He had power to delay implementing the new Act, with no duty to bring it into . .
Cited – Nokes v Doncaster Amalgamated Collieries Ltd HL 1948
A Contract of Service is not a form of property
The employee coal miner was prosecuted for absenting himself from work. He was found liable by the justices and appealed. The basis of the appeal was that he had formerly been employed by the Hickleton Mining Company Limited. That had become . .
Cited – Rex v Minister of Town and Country Planning, Ex parte Montague Burton Ltd CA 1951
Section 37 of the 1889 Act provided that where an Act was not to come into operation immediately, and it conferred power to make regulations or other instruments for the purposes of the Act, that power could be exercised at any time after the . .
Cited – Usher v Barlow CA 1952
A wall plaque was published before 1950. Its design was an original artistic work but was produced for the purpose of reproduction by an industrial process. It was not registered as an industrial design under the applicable designs legislation . .
Cited – Padfield v Minister of Agriculture, Fisheries and Food HL 14-Feb-1968
Exercise of Ministerial Discretion
The Minister had power to direct an investigation in respect of any complaint as to the operation of any marketing scheme for agricultural produce. Milk producers complained about the price paid by the milk marketing board for their milk when . .
Lists of cited by and citing cases may be incomplete.
Constitutional, Health
Updated: 01 November 2021; Ref: scu.466370