Joint Committee on Statutory Instruments Twenty-First Report




  1. The Committee has considered the instruments set out in the Annex to this Report and has determined that the special attention of both Houses does not require to be drawn to any of them.

(S.I. 1999/1191)

  2. The Committee draws the special attention of both Houses to these Regulations on the ground that they constitute an unexpected use of the powers under which they are made.

  3. These Regulations are made under the power in section 21(5)(e) of the Disability Discrimination Act 1995 to make regulations as to, in particular, "things which are to be treated as physical features". Section 21(2) of the Act imposes on the provider of services a duty to take reasonable steps to remove, alter or enable to be avoided "a physical feature (for example, one arising from the design or construction of a building or the approach or access to premises) [which] makes it impossible or unreasonably difficult for disabled persons to make use of the service".

  4. The Committee was concerned that the power in section 21(5)(e) might not be properly exercised by regulation 3(a), (b) and (e), which simply repeats section 21(2) and fails to specify "things" which are to be treated as physical features. The Committee therefore asked the Department for Education and Employment whether (i) a power to make provision as to "things" which are to be treated as physical features is properly exercised in regulation 3(a), (b) and (e); and (ii) whether (and what) those paragraphs add to the words of section 21(2) itself. The Department answer in the memorandum printed in Appendix I in relation to (i) that the dictionary meaning of "things" includes the words in the paragraphs in question; and in relation to (ii) that the paragraphs do make additions to section 21(2): for example, they make it clear that a feature can be temporary as well as permanent; and paragraph (c) makes it clear that the state of land is a feature. The Department do, however, admit in their memorandum that paragraphs (a) and (b) add nothing to section 21(2). As regards the parenthetical clarification as to temporary features, the Committee considers that the clarification is unnecessary since it would be remarkable if a feature which is in place and creates difficulties were not a feature within section 21 just because it is temporary. And as regards paragraph (e), the Committee considers that it is doubtful whether the "quality" of land is a "thing" in a context in which "feature" means "physical feature"and they also consider that the state of land is a physical feature of it. In summary, the Committee is of the view that the statements in regulation 3(a), (b) and (e) do not add anything significant to what section 21 already contains and that the power in subsection (5) was conferred with the intention that peripheral areas of doubt as to the status as physical features of such "things" as the juxtaposition of doors or the resistance of retaining springs would be clarified by declaring whether they are (or are not) to be treated as physical features. Since the regulations do not do this, the Committee reports regulation 3(a), (b) and (e) as constituting an unexpected use of power.


  5. The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted in four places.

  6. The Scottish Office Pensions Agency accept in response to questions by the Committee that the reference in regulation J1(3)(b) to "paragraph 1(a) or (b)" ought to have been to paragraph 2(a) or (b); that the reference in regulation P1(4)(a) to "paragraph (1)(b)" ought to have been to paragraph (3)(b) and that in regulation P1(5) to "paragraph 1(a)" ought to have been to paragraph (3)(a); and that the reference in paragraph 3 of Schedule 1 to "paragraph 3" should have been to paragraph 2. The Agency undertakes to make appropriate amendments as soon as possible. The Committee reports the Regulations for defective drafting in four places.

1   The Orders of Reference of the Committee are set out in the First Report, Session 1998-99 (HL Paper 4; HC 50-i). Back

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