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.

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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 states that:

(1) This section applies where an Act or a provision of an Act which does not come into operation immediately on the passing of the Act will, on its coming into operation, confer power or amend another Act so as to confer power under the other Act as so amended to—

(a) make subordinate instruments or any other instruments of a legislative or administrative character; or

…

(f) do any other thing—

for the purposes of that Act or provision or that other Act.

(2) Unless the contrary intention appears, the power may be exercised at any time after the passing of the Act but its exercise does not confer a right or impose an obligation on a person before the coming into operation of the Act or provision except insofar as is necessary or expedient for the purpose of—

(a) bringing the Act or provision into operation; or

(b) making the Act or provision or the other Act as amended fully effective at or after that coming into operation.

(3) Without limiting subsection (2), an appointee may exercise a power, and a body may meet and exercise a power, under that subsection before the coming into operation of the Act or provision in the same manner and subject to the same conditions or limitations (if any) and with an entitlement to payment of the same remuneration or allowances (if any) as if the Act or provision were in operation.

As the RLA 2003 was passed on or before 15 April 2003, sub-s 13(2) of the ILA appears to be sufficient to save the determination.

A copy of the determination is available here.