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.
