Appendix 6
S.I. 2012/985: memorandum from the Department
for Transport
M1 Motorway (Junctions 10 to 13) (Actively
Managed Hard Shoulder and Variable Speed Limits) Regulations 2012
(S.I. 2012/985)
1. By a letter dated 20th June 2012, the Joint
Committee on Statutory Instruments requested a memorandum on the
following point:
"Explain whether, and (if so) why, the complexity
of varying the S.I. 2012/104 wording to wording likely to be acceptable
to the Committee was a factor in the Department's decision to
follow the S.I. 2012/104 wording in regulation 4(2)."
2. In its forty-third Report published on the
14th March 2012, the Committee reported the M25 Motorway (Junctions
2 to 3) (Variable Speed Limits) Regulations 2012 (S.I. 2012/104)
for defective drafting in one respect, namely the wording of regulation
3(2)(c).
3. The wording in regulation 4(2) of S.I. 2012/985
replicates exactly the wording in regulation 3(2) of S.I. 2012/104
which is as follows:
"(2) A section of a road is subject to a variable speed limit
in relation to a vehicle being driven along it if-
(a) the road is specified in Schedule 2;
(b) the vehicle has passed a speed limit sign; and
(c)the vehicle has not passed—
(i) another speed limit sign indicating a different speed
limit; or
(ii) a traffic sign which indicates that the national speed
limit is in force."
Subsequent references to regulation 3(2)(c) apply equally to regulation
4(2)(c) of S.I. 2012/985.
4. The Committee stated in its Report that, when
read literally, regulation 3(2)(c) does not achieve the result
intended by the Department as set out in its Memorandum. In particular,
the Committee stated that, taking account of the Department's
explanation of a "section" of road, the effect of regulation
3(2)(c) is that a vehicle cannot, within the same section of road
in which it passes a variable speed limit sign, thus engaging
3(2)(b), subsequently pass a different speed limit sign in the
same section. It also stated that a vehicle cannot be said to
have not passed a sign as required under 3(2)(c)(i) as it is likely
to have already passed an earlier sign.
5. The Department considers there may be an alternative
approach to interpreting the drafting which achieves the policy
intention to provide clarity and certainty in relation to the
circumstances when a specific variable speed limit commences and
subsequently ceases to apply to a vehicle progressing along the
motorway. This approach is predicated on a section of road being
the road on which a vehicle is travelling at a particular time,
potentially encountering differing variable speed limit signs
as it does so, as opposed to a geographical location between two
gantries.
6. Thus, for a vehicle to be subject to a variable
speed limit and therefore the prohibition in 3(1), it must first
pass a speed limit sign as provided in regulation 3(2)(b). However,
(b) can only be met where the circumstances specified in regulation
3(2)(c) have not occurred (the addition of the "and"
at the end of (b) ensures this). When the vehicle passes a speed
limit sign (which may, for example, display 60mph) the vehicle
is subject to that speed limit, unless or until either (i) or
(ii) of sub paragraph (c) is engaged. If the vehicle then passes
another gantry displaying a sign specifying, for example, 50mph,
it has "…passed another speed limit sign indicating
a different speed limit" thus engaging (c)(i). Paragraph
(b) can no longer be met in relation to the 60mph speed limit
as the vehicle has now passed a different sign indicating a different
speed limit.
7. We recognise this is a slightly different
approach from that which was put to the Committee in the Department's
Memorandum of 6th March 2012. Furthermore, even if we think the
existing wording achieves the policy intent as explained above,
we must nonetheless consider the Committee's view of the wording
and decide whether or not an amendment is nonetheless required
to the wording with regard to future instruments.
8. There is complexity in this. Rushing into
changing the wording in these Regulations following the Committee's
14th March Report ran the risk of creating further unintended
consequences. S.I. 2012/985 needed to be made quickly for the
reasons stated in the Explanatory Memorandum to that instrument.
The Department wanted to consider the Committee's comments in
depth, and to reach a settled view itself of the current drafting,
with a view to reaching a decision and a way forward that would
be legally robust. The Department also had to bear in mind the
instruments already in operation with the current wording.
9. The Department is yet to reach a concluded
view on these matters but it anticipates being able to do so shortly.
Department for Transport
27 June 2012
| 
