Joint Committee on Statutory Instruments Eighth Report


Instruments reported


The Committee has considered the following instruments, and has determined that the special attention of both Houses should be drawn to them on the grounds specified.

1 S.I. 2003/3122: defective drafting

Disability Discrimination Act 1995 (Private Hire Vehicles) (Carriage of Guide Dogs etc.) (England and Wales) Regulations 2003 (S.I. 2003/3122)

1.1 The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted.

1.2 Section 37A of the Disability Discrimination Act 1995 imposes a duty on licensed private hire vehicle drivers to carry, without additional charge, a guide dog or hearing dog accompanying a disabled user of the vehicle, unless the licensing authority has exempted the driver on medical grounds. An exemption is only effective, however, if the prescribed notice of exemption is exhibited on the vehicle in the prescribed manner. The Regulations prescribe the form of an exemption notice and the manner in which it is to be exhibited. The Regulations are in almost identical form to the Disability Discrimination Act 1995 (Taxis) (Carriage Of Guide Dogs Etc.) (England and Wales) Regulations 2000 (S.I. 2000/2990), which the Committee reported in its 2nd Report of Session 2000-2001 on the grounds that regulation 1(1) was defectively drafted and regulation 2(2) contained an unexpected use of the relevant enabling power.

1.3 In a memorandum printed at Appendix 1, the Department for Transport acknowledges that it did not identify the Committee's earlier report at the time these regulations were drafted. In its second memorandum the Department explains that its standing instructions to lawyers include a requirement to check for comments of the Committee, but that no check was made in this case. The Department has reminded all its lawyers of the importance of carrying out the check. The Committee reminds all Departments that it expects those preparing subordinate legislation to ensure that they are aware of the Committee's reports and take full account of them.

1.4 Regulation 1(1) states that regulation 2(1) comes into force on 31 December 2003 and all other provisions come into force on 31 March 2004, thereby providing that the interpretation and extent provisions come into force after a substantive provision. The Department accepts that regulation 1(1) is defectively drafted, and the Committee reports accordingly.

1.5 The form of notice prescribed by regulation 2(1) contains on the front details of the driver's exemption and on the back a warning that only the driver named on the front may use the notice. Regulation 2(2) requires the notice to be exhibited by affixing it either (a) in a prominent position on the dashboard, facing upwards or (b) to the windscreen, facing outwards. The effect of using the former method is that the back of the notice will not be visible when affixed.

1.6 In its report on S.I. 2000/2990, the Committee considered that it was an unexpected use of the enabling power to prescribe a form of notice with material on both sides but then to prescribe that it be exhibited in a way in which only one side is visible. It was not apparent to the Committee how the warning, which appeared to be directed at drivers other than the exempted one, would be effective whilst the notice was affixed in a manner in which the warning is not visible. The Committee noted that the legislation did not appear to require the removal of notices when the exempted driver is not driving.

1.7 The Department states in its second memorandum that the warning reminds the driver to whom the exemption applies that he should not leave the notice on display when he is not driving the vehicle. The warning on the prescribed notice set out in the Schedules does not contain any such reminder, however, and in that respect the Committee considers the Schedules to be defectively drafted. Furthermore, there is nothing in regulation 2(2) to require that the notice is affixed in a manner which makes it easily removable. A notice could therefore lawfully be glued to the dashboard, thereby defeating the stated purpose of the warning. In the Committee's view, therefore, regulation 2(2) does not sufficiently clearly convey its intended effect and is defectively drafted.

1.8 The Committee accordingly reports regulation 2(2) and the Schedules for defective drafting.


 
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