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Cite as: 2012 SC 397, 2011 GWD 12-268, [2011] CSIH 19, 2011 SLT 787, [2011] ScotCS CSIH_19

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Hardie

Lord Bonomy

Lord Marnoch

[2011] CSIH 19

P1019/08

OPINION OF THE COURT

delivered by LORD HARDIE

in the Petition

Petitioner & Reclaimer;

for

Judicial Review

against

THE SCOTTISH MINISTERS

Respondents:

_______

Act: J.J. Mitchell, Q.C., Miss Drummond; Balfour + Manson LLP

Alt: Mure, Q,C., Barne; Scottish Government Legal Directorate

15 March 2011

Introduction

[1] The reclaimer suffers from a mental disorder and is detained in Leverndale Hospital, Glasgow in terms of a compulsion order under the Criminal Procedure (Scotland) Act 1995. The respondents are the Scottish Ministers. The reclaimer seeks judicial review of the failure by the respondents to draft and lay regulations under sections 268(11) and (12) of the Mental Health (Care and Treatment) (Scotland) Act 2003 ("the 2003 Act") before the Scottish Parliament. On 27 August 2008 the Lord Ordinary concluded that the respondents were not obliged to draft and lay before Parliament such regulations and he refused the prayer of the petition. The reclaimer has reclaimed against that decision of the Lord Ordinary

Background

[2] This case relates to the proper construction of section 268 of the 2003 Act. That section is in Chapter 3 of Part 17 of the Act and is concerned with the remedy available when it is alleged that a patient in a hospital, other than a state hospital, is being detained in conditions of excessive security. The reclaimer avers that he is a patient in the White House, a unit within Leverndale Hospital (a mental hospital) in which patients may be detained in conditions of low security. He avers that he is detained there under conditions of low security and has been receiving treatment for his mental disorder there. In his opinion, the Lord Ordinary refers to the definition of "low security" contained within the report entitled "Definition of security levels in psychiatric inpatient facilities in Scotland". At paragraph 2.8.1 of that report, the definition of low security includes the following:

"Security measures are intended to impede rather than completely prevent absconsions (sic), with greater reliance on staffing arrangements and less reliance on physical security measures."

Low security might involve a patient being kept at times in a locked ward.

[3] Section 21 of the 2003 Act established the Mental Health Tribunal ("the Tribunal"). Section 164 enables a patient, who is subject to a compulsion order, or his representative to apply to the Tribunal for an order under section 167 revoking the compulsion order or varying it by modifying the measures specified in it. The reclaimer made an application to the Tribunal to revoke his compulsion order on the basis that he did not need any medical treatment. The Tribunal rejected that application and concluded that the reclaimer required highly skilled nursing care (medical treatment), which could not be provided in a community setting.

[4] The reclaimer now contends that the level of security applied to him is excessive. He is detained in a locked ward but he wishes to be detained under conditions of lesser security, which would involve detention in an open ward. He avers that if he were in an open ward, his quality of life would be improved and it is likely that his eventual liberation from detention would be advanced. There is no formal mechanism to enable the reclaimer to challenge his conditions of security. Accordingly he seeks a declarator that the respondents have failed in their statutory duty to lay before Parliament regulations in terms of sections 268(11) and (12) of the 2003 Act.

Statutory Provisions

[5] Part 17 of the 2003 Act is entitled "PATIENT REPRESENTATION ETC". This part of the Act is sub-divided into three chapters each dealing with the distinct issues of named persons, advocacy and detention in conditions of excessive security. The issue in this case is concerned with the provisions in Chapter 3 (sections 264 to 273 inclusive) relating to detention in conditions of excessive security. Chapter 3 is sub-divided into provisions relating to state hospitals (sections 264 to 267 inclusive) and provisions relating to hospitals other than state hospitals (sections 268 to 272 inclusive). Section 273 is an interpretation section for Chapter 3. For present purposes the relevant sections in Chapter 3 are sections 264, 268 and 273. These sections are in the following terms:

"264 Detention in conditions of excessive security: state hospitals
(1) This section applies where a patient's detention in a state hospital is authorised by -

(a) a compulsory treatment order;

(b) a compulsion order;

(d) a transfer for treatment direction;

and whether or not a certificate under section 127(1) (either as enacted or as applied by section 179(1) of this Act) or 224(2) of this Act has effect in relation to the patient.

(2) On the application of any of the persons mentioned in subsection (6) below, the Tribunal may, if satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital, make an order -

(a) declaring that the patient is being detained in conditions of excessive security; and

(b) specifying a period, not exceeding 3 months and beginning with the making of the order, during which the duties under subsections (3) to (5) below shall be performed.

(3) Where the Tribunal makes an order under subsection (2) above in respect of a relevant patient, the relevant Health Board shall identify a hospital -

(a) which is not a state hospital;

(b) which the Board and the Scottish Ministers, and its managers if they are not the Board, agree is a hospital in which the patient could be detained in appropriate conditions; and

(4) Where the Tribunal makes an order under subsection (2) above in respect of a patient who is not a relevant patient, the relevant Health Board shall identify a hospital -

(a) which is not a state hospital;

(b) which the Board considers, and its managers if they are not on the Board agree, is a hospital in which the patient could be detained in appropriate conditions; and

(5) Where the Tribunal makes an order under subsection (2) above in respect of a patient, the relevant Health board shall, as soon as practicable after identifying a hospital under subsection (3) or, as the case may be, (4) above, give notice to the managers of the state hospital of the name of the hospital so identified.

(6) The persons referred to in subsection (2) above are -

(a) the patient;

(b) the patient's named person;

(d) any welfare attorney of the patient; and

(e) the Commission.

(7) An application may not be made under subsection (2) above -

(a) if the compulsory treatment order that authorises the patient's detention in hospital has not been extended;

(b) during the period of 6 months beginning with the making of the compulsion order that authorises the patients detention in hospital; or

(i) the hospital direction; or

(ii) the transfer for treatment direction,

that authorises the patient's detention in hospital.

(8) No more than one application may be made under subsection (2) above in respect of the same patient -

(a) during the period of 12 months beginning with the day on which the order, or direction, authorising the patient's detention in hospital is made;

(b) during any subsequent period of 12 months that begins with, or with an anniversary of, the expiry of the period mentioned in paragraph (a) above.

..."

Sub-sections 9 and 10 relate to procedure before the Tribunal.

"268 Detention in conditions of excessive security: hospitals other than state hospitals

(1) This section applies where a qualifying patient's detention in a qualifying hospital is authorised by -

(a) a compulsory treatment order;

(b) a compulsion order;

(d) a transfer for treatment direction;

and whether or not a certificate under section 127(1) (either as enacted or is applied by section 179(1) of this Acct) or 224(2) of this Act has effect in relation to the patient.

(2) On the application of any of the persons mentioned in subsection (6) below, the Tribunal may, if satisfied that detention of the qualifying patient in the qualifying hospital involves the patient being subject to a level of security that is excessive in the patient's case, make an order -

(a) declaring that the patient is being detained in conditions of excessive security; and

(b) specifying a period, not exceeding 3 months and beginning with the making of the order, during which the duties under subsections (3) to (5) below shall be performed.

(3) Where the Tribunal makes an order under subsection (2) above in respect of a relevant patient, the relevant Health Board shall identify a hospital -

(a) which is not a state hospital;

(b) which the Board and the Scottish Ministers, and its managers if they are not the Board, agree is a hospital in which the patient could be detained in conditions that would not involve the patient being subject to a level of security that is excessive in the patient's case; and

(4) Where the Tribunal makes an order under subsection (2) above in respect of a patient who is not a relevant patient, the relevant Health Board shall identify a hospital -

(a) which is not a state hospital;

(b) which the Board considers, and its managers if they are not the Board agree, is a hospital in which the patient could be detained in conditions that would not involve the patient being subject to a level of security that is excessive in the patient's case;

(5) Where the Tribunal makes an order under subsection (2) above in respect of a patient, the relevant Health board shall, as soon as practicable after identifying a hospital under subsection (3) or, as the case may be, (4) above, give notice to the managers of the qualifying hospital of the name of the hospital so identified.

(6) The persons referred to in subsection (2) above are -

(a) the qualifying patient;

(b) the qualifying patient's named person;

(d) any welfare attorney of the qualifying patient; and

(e) the Commission.

(7) An application may not be made under subsection (2) above -

(a) if the compulsory treatment order that authorises the patient's detention in hospital has not been extended;

(b) during the period of 6 months beginning with the making of the compulsion order that authorises the patients detention in hospital; or

(i) the hospital direction; or

(ii) the transfer for treatment direction,

that authorises the patient's detention in hospital.

(8) No more than one application may be made under subsection (2) above in respect of the same patient -

(a) during the period of 12 months beginning with the day on which the order, or direction, authorising the patient's detention in hospital is made;

(b) during any subsequent period of 12 months that begins with, or with an anniversary of, the expiry of the period mentioned in paragraph (a) above.

...

(11) A patient is a "qualifying patient" for the purposes of this section and sections 269 to 271 of this Act if the patient is of a description specified in regulations.

(12) A hospital is a "qualifying hospital" for the purposes of this section and sections 269 to 271 of this Act if -

(a) it is not a state hospital; and

(b) it is specified, or of a description specified, in regulations.

(13) Regulations under subsection (11) or (12) above may in particular have the effect -

(a) that "qualifying patient" means a patient;

(b) that "qualifying hospital" means -

(i) a hospital other than a state hospital; or

(ii) a part of a hospital.

(14) Regulations may make provision as to when for the purposes of this section and sections 269 to 271 of this Act a patient's detention in a hospital is to be taken as involving the patient being subject to a level of security that is excessive in the patient's case."

Sub-sections 9 and 10 contain similar provisions to sections 264(9) and (10).

"273 Interpretation of Chapter

In this Chapter -

'relevant Health Board' means, in relation to a patient of such description as may be specified in regulations, the Health Board, or Special Health Board -

(a) of such description as may be so specified; or

(b) determined under such regulations; and

'relevant patient' means -

(a) in sections 264 to 267 of this Act -

(i) a patient whose detention in hospital is authorised by a compulsion order and who is also subject to a restriction order; or

(ii) a patient whose detention in hospital is authorised by a hospital direction or a transfer for treatment direction;

(b) in sections 268 to 271 of this Act -

(i) a qualifying patient whose detention in hospital is authorised by a compulsion order and who is also subject to a restriction order; or

(ii) a qualifying patient whose detention in hospital is authorised by a hospital direction or a transfer for treatment direction."

The other provision to which reference was made in submissions was section 333 containing commencement provisions. So far as relevant in this case, they are in the following terms:

"333 Short title and commencement

(1) ...

(2) Chapter 3 of Part 17 of this Act shall come into force on 1^st May 2006 or such earlier day as the Scottish Ministers may by order appoint.

(3) The remaining provisions of this Act, other than this section and sections 325, 326, 330 and 332, shall come into force on such day as the Scottish Ministers may by order appoint.

(4) Different days may be appointed under subsection (2) or (3) above for different purposes."

Submissions on behalf of the reclaimer

[6] Counsel for the reclaimer submitted that in section 333(2) of the 2003 Act Parliament had enacted that Chapter 3 of Part 17 of the Act, in particular section 268, should come into force by 1 May 2006 at the latest. As regulations were necessary to give effect to the various rights of appeal conferred by Chapter 3, Parliament must have intended that such regulations would be made prior to or simultaneously with the coming into force of Chapter 3; otherwise the provisions would not be capable of operation and would not have come into effect. By failing to draft and lay before the Scottish Parliament the necessary regulations under section 268(11) and (12), the respondents had defeated one of the objects and aims of the legislation, namely to provide on or before 1 May 2006 at least some patients in at least some non-state hospitals with a right of appeal against detention in conditions of excessive security. The respondents' failure to draft and lay before the Scottish Parliament the necessary regulations was unlawful (R v Secretary of state for the Home Department, ex parte Fire Brigades Union and Others [1995] 2 AC 513; Padfield v Minister of Agriculture Fisheries and Food [1968] AC 997; R v Secretary of State for the Environment ex parte Greater London Council [1983] Times L.R. 713; Singh v Secretary of State for the Home Department 1993 SC (HL) 1; Sharma v Registrar to the Integrity Commission [2007] 1 WLR 2849.) Counsel submitted that the Lord Ordinary had erred in his construction of section 268 when he concluded that there was no obligation imposed by Parliament upon the respondents to make regulations under it. Despite the fact that the Lord Ordinary had been referred by counsel for both parties to transcripts of the proceedings in Parliament, he ought not to have relied upon such materials to assist him in interpreting the statutory provisions as they contained no ambiguity (Pepper v Hart [1993] AC 593; R v JTB [2009] 1 AC 1310).

Submissions on behalf of the respondents

[7] Counsel for the respondents submitted that there was no duty on them to make regulations under sections 268(11) and (12) at any particular time or with any particular content. None of the cases cited by counsel for the reclaimer imposed a duty upon the executive to create a scheme; rather they related to situations where a scheme had been created by the legislature and a power to make regulations was conferred upon the executive. In these latter situations, a power to make regulations might be construed as a duty. Section 264 of the 2003 Act directly confers specific appeal rights upon an identified class of person, whereas section 268 does not. In terms of section 268, the respondent had a discretion to determine (a) what regulations to make in relation to non-state hospitals, (b) when it would be appropriate to make them, (c) how, and by reference to what criteria, the concept of excessive security was to be identified and (d) whether circumstances were such as to render it appropriate that regulations should be made. The respondents' position was supported by a correct analysis of section 268 and of the 2003 Act as a whole. Parliamentary material such as that considered by the Lord Ordinary might be relevant in two different situations. First, if the court considers that the meaning of the relevant provisions is ambiguous or obscure, then the court may consider appropriate statements in the parliamentary debates when arriving at the legal meeting of the provisions (Pepper v Hart). For the avoidance of doubt the respondents' position was that the meaning of the provisions in this case was neither obscure nor ambiguous. Second, the court may have regard to parliamentary material when seeking information on the nature and extent of the social problem which the legislation was aimed to remedy (Wilson v First County Trust Ltd (No. 2) [2004] 1 AC 816). In any event in order to place the statutory provisions in context and to understand the mischief at which they were directed, it was permissible for the court to consider the Report on the Review of the Mental Health (Scotland) Act 1984 submitted to the Scottish Ministers by the Millan Committee ("the Millan Report") (Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg A.G. [1975] AC 591).

Discussion
[8] The issue for our determination is whether, on a proper construction of the relevant statutory provisions, the Scottish Ministers were under a duty to prepare and lay before Parliament regulations under section 268(11) and (12) to enable persons, including the reclaimer, to make an application to the Tribunal to determine whether they were being detained in conditions of excessive security; and, if so, to provide a remedy in terms of section 268(2)(b). There is ample authority to the effect that the court may construe a power to make regulations as a duty to do so, if such a construction is necessary to give effect to the clear intention of Parliament. A minister is precluded from exercising his discretion in such a manner "as to thwart or run counter to the policy and objects of the Act." (Padfield v Minister of Agriculture Fisheries and Food per Lord Reid at 1030). Similarly, where regulations were necessary to give effect to rights of appeal to affected persons in the immigration context, the court held that the Secretary of State had a duty to make such regulations (Singh v Secretary of state for the Home Department). Permissive words in legislation enabling a minister to make regulations may, in certain circumstances, be construed as creating a duty upon the minister to exercise the power conferred upon him by Parliament. In Julius v Lord Bishop of Oxford (1880) 5 App. Cas. 214 Lord Penzance stated (at page 229) with reference to permissive words in the statute with which that case was concerned:

"The words 'it shall be lawful' are distinctly words of permission only - they are enabling and empowering words. They confer a legislative right and power in the individual named to do a particular thing, and the true question is not whether they mean something different, but whether, regard being had to the person so enabled - to the subject-matter, to the general objects of the statute, and to the person or class of persons for whose benefit the power may be intended to have been conferred - they do, or do not create a duty in the person on whom it is conferred, to exercise it."

We respectfully adopt that as the proper approach for our determination of the issue before us.

[9] Chapter 3 of Part 17 of the Act is concerned with the question of detention of patients in conditions of excessive security. Sections 264 to 267 inclusive relate to patients in state hospitals, whereas sections 268 to 271 inclusive relate to patients in hospitals other than state hospitals. Section 264 contains similar, but not identical, provisions for patients in state hospitals as the provisions in section 268 for patients in hospitals other than state hospitals. What is clear, however, from the terms of section 264 is that the class of persons for whose benefit the provisions are intended is clearly identified, namely any patient whose detention in a state hospital is authorised by any of the orders or directions specified in section 264(1). In the case of any such patient, the patient, his named person, guardian, welfare attorney and the Mental Welfare Commission may apply to the Tribunal for a declaration that the patient does not require to be detained under conditions of special security that can only be provided in a state hospital and may seek an order, requiring the transfer of the patient to a hospital which is not a state hospital. The only uncertainty in section 264 is the meaning of "the relevant Health Board" which appears in subsections (3), (4), (5) and (10). We note that this phrase also appears in the equivalent subsections of section 268. However, section 273 enables that matter to be clarified by regulations. The Mental Health (Relevant Health Board for Patients Detained in Conditions of Excessive Security) (Scotland) Regulations 2006 (SSI 2006 No. 172) came into force on 1 May 2006 and defined the phrase "relevant Health Board" for the purposes of Chapter 3. Thus, as far as patients in state hospitals were concerned, there was no impediment to their making an application to the Tribunal on or after 1 May 2006, being the date on which Chapter 3 came into force in terms of section 333(2). Even if the relevant Health Board had not been defined by regulations coming into force on or before 1 May 2006, a patient in a state hospital seeking a remedy under section 264 would not have been precluded from making an application to the Tribunal because the identity of the relevant Health Board was only of significance in the implementation of an order of the Tribunal in the event of the application being successful. In determining such an application, the Tribunal could have made an order declaring that the patient was being detained in conditions of excessive security and specifying a period , not exceeding three months from the date of the order, during which the duties under subsections (3) to (5) had to be performed. If the failure of the Scottish Ministers to specify in regulations the meaning of the "relevant Health Board" had had the effect of preventing implementation of the Tribunal's order, the court could undoubtedly have intervened to construe the legislation as imposing a duty upon the Scottish Ministers to make such regulations as regards patients in state hospitals. It was the clear intention of Parliament that patients in state hospitals who satisfied any of the criteria in section 264(1)(a) to (d) inclusive should have effective rights of appeal against being detained in conditions of excessive security. In that situation the court would infer a duty on Scottish ministers to make any necessary regulations to give effect to that intention.

[10] In contrast to section 264, which clearly relates to all patients detained in a state hospital by virtue of an order or direction specified in section 264(1), section 268 is concerned only with the detention of a "qualifying patient" in a "qualifying hospital" (our emphasis) where that detention is authorised by an order or direction specified in section 268(1). The right to apply to the Tribunal in terms of section 268(2) is thus restricted to the qualifying patient, his named person, his guardian, his welfare attorney and the Mental Welfare Commission. If such an application were competently made, the issue for the consideration of the Tribunal would be whether the detention of the "qualifying patient" in the "qualifying hospital" involved the patient being subject to a level of security that was excessive. The distinction between patients in state hospitals and patients in non-state hospitals is maintained in the definition of "relevant patient" in section 273 of the Act. A relevant patient for the purposes of section 264 to 267 of the Act, is any patient in a state hospital whose detention is authorised by the orders or directions specified in the definition, whereas a relevant patient for the purposes of sections 268 to 271 of the Act is a qualifying patient (our emphasis) whose detention is authorised by identical orders or directions as those specified in the definition applicable to patients in state hospitals. If it had been the intention of Parliament that sections 268 to 271 of the Act should apply to any patient detained in a hospital other than a state hospital by virtue of such orders or directions, there would have been no necessity to introduce in section 268 the adjective "qualifying" before the word "patient" and the phrase "qualifying hospital" would have been replaced by words such as "a hospital other than a state hospital". In any event, it is clear that the provisions of section 268 are restricted to qualifying patients in qualifying hospitals. The class of persons whom Parliament intended to benefit from the provisions of sections 268 to 271 inclusive is thus not defined within the Act and requires to be specified in the regulations envisaged by section 268(11) and (12). Each of these subsections stipulates that a patient or a hospital is a "qualifying patient" or "qualifying hospital" respectively if the patient or the hospital, as the case may be, satisfies a description specified in the regulations. In our view, unlike patients in state hospitals upon whom a right to apply to the Tribunal is conferred by Parliament, it cannot be said that Parliament has identified the class of patients in non-state hospitals to whom the provisions of sections 268 to 271 inclusive are intended to apply. Moreover, if such regulations are made specifying the class of patients to whom these provisions do apply, it cannot be assumed that they will include the reclaimer. In contrast to the provisions relating to patients in state hospitals, the provisions in sections 268 to 271 inclusive fail to identify any persons with actual rights to be effectuated by regulations.

[11] Nor do we consider that section 333 is of assistance to the reclaimer. Section 333(2) brought Chapter 3 of Part 17 of the Act into force on 1 May 2006 or such earlier day as the Scottish Ministers might by order appoint. The petition in this case was not grounded upon any legitimate expectation on the part of the reclaimer and rightly so, in our opinion, as we are concerned here with a question of statutory construction. However, in a general non-technical sense the terms of section 332(2) may have given rise to expectations on the part of patients generally who were detained in mental hospitals by virtue of any of the orders or directions specified in section 268. Such expectations were not fulfilled when one considers the terms of the legislation generally and, in particular the lack of identification of the class of persons whose rights were to be effectuated by regulations. The effect of section 333(2) is that Parliament brought Chapter 3 into force on 1 May 2006 and did not leave that matter to the discretion of the Scottish Ministers. Thus Parliament determined that patients in state hospitals had a right of appeal to the Tribunal in terms of section 264 with effect from 1 May 2006 but it also permitted the Scottish Ministers to confer upon such patients such a right of appeal from an earlier date by bringing the provisions into force prior to 1 May 2006. We do not attach any significance to the inclusion in section 333(2) of all of the provisions in Chapter 3 of Part 17 of the Act, apart from the fact that it had the effect of conferring upon the Scottish Ministers power to make regulations under sections 268 and 273, if they considered it appropriate to do so. In fact, on 17 March 2005 the Scottish Ministers made the Mental Health (Care and Treatment) (Scotland) Act 2003 (Commencement No. 4) Order 2005 (SSI 2005 No. 161). This brought sections 268 and 273 into force on 6 January 2006, but only for the purpose of enabling regulations to be made. The commencement order did not require the approval of Parliament, whereas any regulations made in terms of section 268 or 273 had to be laid before the Scottish Parliament as is evident from the terms of the Mental Health (Relevant Health Board for Patients Detained in Conditions of Excessive Security) (Scotland) Regulations 2006. For reasons discussed below, the aim of the legislation was to relieve pressure on the State Hospital at Carstairs by allowing for the transfer of patients from that hospital who were no longer in need of the conditions of special security that could only be provided in the State Hospital. In these circumstances, by bringing into force on the same date, all of the provisions in Chapter 3, Parliament achieved the dual objective of ensuring that the right of appeal to the Tribunal conferred upon patients in the State Hospital was delayed until adequate alternative facilities were available, while at the same time enabling ministers to keep under review the question of introducing similar rights of appeal to a certain class or classes of patients in particular non-state hospitals. In the context of a hierarchy of hospitals with different levels of security, one can readily envisage that ministers might wish to consider those facilities with the greatest levels of security in the first instance, as well as particular classes of patients within those facilities. By bringing into force sections 268 to 271 simultaneously with the provisions relating to patients in state hospitals, Parliament afforded to Scottish Ministers the necessary flexibility to keep under review the situation of particular classes of patients in particular hospitals, as soon as the right of patients in the State Hospital to apply to the Tribunal became effective.

[12] We agree with counsel for the reclaimer that the language of the statute does not contain any ambiguity or absurdity necessitating our consideration of the proceedings before Parliament to assist us in the construction of the relevant provisions. However, in interpreting legislation, the court is not always restricted to the language of the statute when ascertaining the intention of Parliament. Nor is the use by the court of external materials confined to cases of ambiguity, obscurity or where a particular construction of the provisions leads to absurdity, all of which are accommodated in the decision of Pepper v Hart . As Lord Nicholls of Birkenhead observed in Wilson v First County Trust Ltd (No. 2) at para. 56:

"When a court is carrying out its constitutional task of interpreting legislation, it is seeking to identify the intention of Parliament expressed in the language used. This is an objective concept. In this context, the intention of Parliament is the intention the court reasonably imputes to Parliament in respect of the language used. In seeking this intention, the courts have recourse to recognised principles of interpretation and also a variety of aids, some internal, found within the statute itself, some external, found outside the statute. External aids include the background to the legislation, because no legislation is enacted in a vacuum. It has long been established that the courts may look outside the statute in order to identify the "mischief" Parliament was seeking to remedy. Lord Simon of Glaisdale noted it is "rare indeed" that a statute can be properly interpreted without knowing the legislative object: Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg A.G. [1975] AC 591, 647. Reports of the Law Commission or advisory committees and government white papers, are everyday examples of background material which may assist in understanding the purpose and scope of legislation."

In the present case, the background to this legislation was the Millan Report laid before the Scottish Parliament by the Scottish Ministers in 2001. That report addressed the question of appeals against levels of security in Chapter 27 (paras. 79 to 91). It is clear that the primary concern related to patients in the State Hospital and the need to have appropriate facilities to treat patients transferred from the State Hospital in conditions of adequate security. However, at paragraph 91, the committee observed:

"Although the current concern relates to patients entrapped in the State Hospital, it is possible that the same difficulties could arise in future in respect of patients in medium secure services, who are not able to move to low security settings. We have addressed this in our recommendations."

Recommendation 27.19 was in the following terms:

"Patients should have a right of appeal to be transferred from the State Hospital, or a medium secure facility, to conditions of lower security."

Recommendation 27.21 was to the following effect:

"Should the Tribunal uphold such an appeal, it could order the relevant health board to make the necessary arrangements for the patient within a specified time, not exceeding three months."

This latter recommendation is reflected in section 264(2) to (5) inclusive and section 268(2) to (5) inclusive. More significantly, paragraph 91 and recommendation 27.19 envisaged patients having a right of appeal to be transferred from the State Hospital or from a medium secure facility to conditions of lower security. Sections 264 to 267 inclusive of the Act provide for the right of appeal and the recall of orders made under sections 264 to 266 in respect of patients in the State Hospital. Having regard to the terms of the Millan Report mentioned above we consider that the mischief which sections 268 to 271 was intended to address was primarily the right of appeal of patients detained in a medium secure facility. We were advised that two medium secure facilities have been constructed, one in the west of Scotland and one in the east of Scotland, and are operational and that a third unit in the north is almost complete. From the terms of the Millan Report and the subsequent action taken by Scottish Ministers to provide medium secure facilities, we are satisfied that the primary mischief which the legislation sought to address was the transfer from the State Hospital of those patients, who no longer required the conditions of special security afforded by that hospital; the secondary objective was to keep under review patients who were detained in medium secure facilities and to afford them rights of appeal, should they experience the same difficulties noted by the Millan Committee in respect of patients "entrapped" in the State Hospital. The primary mischief could not be addressed until sufficient places were available in medium secure units and the delay in bringing into effect Chapter 3 of the Act was designed to enable the necessary medium secure facilities to be provided to accommodate patients who were transferred from the State Hospital. Parliament obviously considered that a period of 3 years following the passing of the Act was a reasonable period for this to be achieved. Thus the expectation of Parliament was that by 1 May 2006, the necessary facilities would be in place and patients in the State Hospital would be able to exercise their rights under section 264. The provisions in Chapter 3 relating to appeals by patients alleging conditions of excessive security in non-state hospitals seem to us to have been intended to address the secondary objective. As the Millan Report noted, there is a possibility of future difficulties relating to patients in medium secure facilities. To address that possibility Parliament has provided in sections 268 to 271 a scheme for appeals by patients in non-state hospitals. However, we note that Parliament did not restrict the scheme to patients in medium secure facilities, as envisaged by the Millan Report. Rather Parliament conferred upon the Scottish Ministers a discretion to introduce the scheme for designated patients in designated hospitals. This affords ministers greater flexibility than envisaged by the Millan Report to respond quickly to any future problems. Ministers will be able to monitor the situation in facilities of all levels of security and to bring into effect the rights of appeal in section 268 for patients in a particular class and in particular hospitals should that prove necessary.

[13] In all the circumstances, we shall refuse the reclaiming motion.