Third floor determination

Given developments over the last few days, I thought it would be worth doing a single post on the validity of the third floor determination.

The relevant dates are as follows:

• 15 April 2003 – the RLA 2003 received Royal assent;
• 29 April 2003 – date of third floor determination;
• 30 April 2003 – Gazette entry publishing third floor determination;  and
• 1 May 2003 – s 5(1) of the RLA 2003 came into force.

In a hearing last week, the County Court expressed the view that the third floor determination may not be valid because the determination is made under s 5(1) of the RLA 2003 and was made on 29 April 2003, but s 5(1) did not come into force until 1 May 2003.

However, Robert Hay, in a post on his blog, pointed out that the instrument appears to be valid under s 13 of the Interpretation of Legislation Act 1984.

Section 13 of the ILA, as was current at the date of the Ministerial Determination, states that:

13. Exercise of powers between passing and commencement of Act

Where an Act or a provision of an Act which does not come into operation immediately on the passing of the Act will, upon its coming into operation, confer power or amend another Act so as to confer power under the other Act as so amended to make subordinate instruments, give notices, make appointments, prescribe forms or do any other thing for the purposes of the first-mentioned Act or provision or that other Act, the power may, unless the contrary intention appears, be exercised at any time after the passing of the first-mentioned Act but the exercise of the power does not confer a right or impose an obligation on a person before the coming into operation of the first-mentioned Act or the provision of that Act in question except insofar as is necessary or expedient for the purpose of—

(a)  bringing the first-mentioned Act or the provision of that Act in question into operation; 

(b)  making the first-mentioned Act or the provision of that Act in question fully effective at or after the time at which it comes into operation; or

(c)  making the amendment made to the other Act by the first-mentioned Act or the provision of that Act in question fully effective at or after the time at which the first-mentioned Act or provision comes into operation.

As the RLA 2003 was passed on or before 15 April 2003, s 13 of the ILA appears to be sufficient to save the determination.

A copy of the determination is available here.