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 [2015] ScotCS CSOH_60 (21 May 2015)

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 [2015] ScotCS CSOH_60 (21 May 2015)

The court held that, although the Scottish Ministers remain in a state of unlawfulness by not having laid the required regulations, steps have been taken to address the deficiency through legislative amendment and draft regulations. The court has discretion whether to grant the orders sought and, in the circumstances, it is neither necessary nor appropriate to do so. Article 5 ECHR is not engaged as the petitioner is lawfully detained in an appropriate institution, and therefore Article 14 does not apply. The petitioner's pleas are repelled and the respondents' pleas are upheld.

Citation
[2015] ScotCS CSOH_60
Parties
Petitioner: LS; Respondent: Scottish Ministers
Jurisdiction
Scotland
Judgment Date
21 May 2015
Procedural Posture
Judicial Review / Opinion of Outer House, Court of Session
Outcome
Petition refused; pleas for petitioner repelled; pleas for respondents upheld; expenses reserved.
Legal Topics
Failure to Implement Statutory Regulations, Right to Challenge Conditions of Detention, Discrimination Under ECHR Article 14, Interpretation of ECHR Article 5
Administrative Law Mental Health Law Human Rights Law Failure to Implement Statutory Regulations Right to Challenge Conditions of Detention Discrimination Under ECHR Article 14 Interpretation of ECHR Article 5

Case Brief

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Parties

LS

Petitioner

Scottish Ministers

Respondent

Procedural Posture

Judicial Review / Opinion of Outer House, Court of Session

Legal Issues

  1. 1 Whether the continuing failure of the Scottish Ministers to draft and lay before the Scottish Parliament regulations under section 268(11) and (12) of the Mental Health (Care and Treatment) (Scotland) Act 2003 is unlawful
  2. 2 Whether such failure violates Article 5 and/or Article 14 ECHR
  3. 3 Whether the court should order the Scottish Ministers to draft and lay such regulations within a specified period

Ratio Decidendi

The court held that, although the Scottish Ministers remain in a state of unlawfulness by not having laid the required regulations, steps have been taken to address the deficiency through legislative amendment and draft regulations. The court has discretion whether to grant the orders sought and, in the circumstances, it is neither necessary nor appropriate to do so. Article 5 ECHR is not engaged as the petitioner is lawfully detained in an appropriate institution, and therefore Article 14 does not apply. The petitioner's pleas are repelled and the respondents' pleas are upheld.

Court Disposition

Petition refused; pleas for petitioner repelled; pleas for respondents upheld; expenses reserved.

Orders

  • Repel first and second pleas-in-law for the petitioner
  • Uphold third, fourth and sixth pleas-in-law for the respondents