Failure to Exercise a Discretionary Power

RM v. Scottish Ministers, [2012] UKSC 58 was a relatively straightforward case for the UK Supreme Court. The applicant/appellant is currently detained in a mental health facility under a compulsion order and wishes to apply to the Mental Health Tribunal for an order declaring that he is being held in conditions of excessive security.

The problem is that although the legislation in issue provides for such applications, they are contingent on the patient and his hospital being ‘qualified’ under the Mental Health (Care and Treatment) (Scotland) Act, 2003. Unfortunately, no regulations have been passed identifying the “qualifying patients” and “qualifying hospitals” for the purposes of such applications. This situation is not likely to last much longer, however.

Relying on the seminal case of Padfield v. Minister of Agriculture, Fisheries and Food, [1968]  AC 997, Lord Reed wrote that the failure to pass regulations amounted to an abuse of discretion:

43. In the event, 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 Reed also skewered the circular argument that the right to make such applications was contingent on the regulations being passed in the first place. On the contrary, such regulations were necessary to give effect to the provisions of the Act:

47. The importance of Padfield was its reassertion that, even where a statute confers a discretionary power, a failure to exercise the power will be unlawful if it is contrary to Parliament’s intention. That intention may be to create legal rights which can only be made effective if the power is exercised, as in Singh v Secretary of State for the Home Department. It may however be to bring about some other result which is similarly dependent upon the exercise of the power. Authorities illustrating that principle in the context of a statutory power to make regulations, where such regulations were necessary for the proper functioning of a statutory scheme, include Greater London Council v Secretary of State for the Environment [1984] JPL 424 and Sharma v Registrar to the Integrity Commission [2007] 1 WLR 2849, para 26, per Lord Hope of Craighead. In the present case, the exercise of the power to make regulations by 1 May 2006 was necessary in order to bring Chapter 3 of Part 17 of the 2003 Act into effective operation by that date, as the Scottish Parliament intended. The Ministers were therefore under an obligation to exercise the power by that date.

Accordingly, declarator was issued in favour of the applicant/appellant. We will see some regulations soon, it seems.

This content has been updated on June 11, 2014 at 09:47.