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.
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