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Legislation (Wales) Act 2019

Part 3: Miscellaneous

Section 38 – Power to replace descriptions of dates and times in Welsh legislation

194.Section 38(1) gives the Welsh Ministers a power to amend Welsh legislation which contains a description of a date or time, by inserting a reference to the actual date or time once it is known. The power is available where a date or time is described by reference to the coming into force of an enactment or the occurrence of any other event. For example, if an Assembly Act refers to things done on or after “the day on which section 10 comes into force”, and section 10 is brought into force on 1 January 2018, the Act could be amended to refer to things done on or after “1 January 2018”.

195.The power in section 38(1) cannot be used to change the effect of the legislation in question, but only to change the way in which that effect is expressed. The purpose of the power is to make legislation simpler and more accessible. Regulations under section 38(1) will mean that people reading the up-to-date text of the legislation will be able to understand references to dates or times without needing to refer to other legislation or documents (such as commencement orders).

196.Where a date is inserted, readers may find it helpful to know the significance of that date. Section 38(2) therefore enables regulations under section 38(1) to add an explanation of the date they insert. For example, it might sometimes be helpful to replace “the day on which section 10 comes into force” with “1 January 2018 (the day on which section 10 came into force)”.

197.Subsection (2) also confers a power to make consequential amendments, repeals and revocations. For example, if Welsh legislation contained references to an “appointed day,” which were replaced with references to the actual day that was appointed, an amendment might be made to remove the definition of the “appointed day”.

198.Subsection (3) identifies the Welsh legislation that may be amended under this section, to include primary and secondary legislation made by the National Assembly for Wales and the Welsh Ministers, and other enactments so far as they are amended by those types of legislation. The power may be used to amend both existing legislation and legislation enacted after this section comes into force.

Section 39 – Power to make subordinate legislation in different forms

199.Since 2014, Assembly Acts and Acts of the UK Parliament have usually given the Welsh Ministers powers to make subordinate legislation in the form of regulations rather than orders or rules. However, the Welsh Ministers still have many powers to make orders and rules under earlier legislation. This section enables the Welsh Ministers to exercise powers to make regulations, rules or orders by making any other of those forms of subordinate legislation. For example, a power to make orders could instead be exercised to make regulations.

200.Section 39 is intended to remedy the situation where it is necessary to make a number of different regulations, rules or orders to give effect to a single policy. It applies to subordinate legislation that is made by statutory instrument, and its purpose is to enable different forms of subordinate legislation to be combined in the same instrument. Making a single statutory instrument may not only be administratively convenient but may also enable the legislation to tell its story more coherently.

201.Subsection (2) makes clear that making subordinate legislation in a different form under this section does not affect the procedure for making an instrument. For example, if an order-making power in an Act is used to make regulations in reliance on this section, the procedure that would apply to orders under the Act still applies.

202.Where other legislation, legal instruments or documents contain references to regulations, rules or orders made under particular powers, subsection (3) adapts those references to take account of the possibility that subordinate legislation under those powers may be made in a different form as a result of this section.

203.Section 39 applies regardless of the source of the Welsh Ministers’ power or duty to make subordinate legislation, and regardless of when the power was conferred or the duty was imposed. However, subsection (4) provides that the power in this section cannot be used where the Welsh Ministers make subordinate legislation that applies otherwise than in relation to Wales under an Act of the UK Parliament or retained direct EU legislation. In other words, the power can be used where the Welsh Ministers make subordinate legislation under an Assembly Act or Measure, and where they make provision that applies only in relation to Wales under an Act of the UK Parliament or retained direct EU legislation.

Section 40 – Combining subordinate legislation subject to different Assembly procedures

204.Section 40 makes provision about the combination in a single statutory instrument of subordinate legislation made by the Welsh Ministers using different powers to which different Assembly procedures apply. It ensures that the instrument is subject to the most stringent of the procedures that would otherwise apply. For example, if a statutory instrument contains some provisions that would attract the affirmative procedure and some provisions that would attract the negative procedure, this section means that the affirmative procedure applies to the whole instrument (and that the negative procedure does not apply).

205.Many Acts already contemplate the combination in a single instrument of subordinate legislation made under different powers within the same Act, even where those powers would normally attract different procedures. For example, an Act may provide that any instrument containing regulations under certain powers in the Act is subject to the affirmative procedure (whether or not it also contains regulations under other powers), and that the negative procedure applies to “any other” instrument containing regulations under the Act (i.e. any instrument that does not contain regulations under the powers that attract affirmative procedure).

206.However, provisions about Assembly procedure for statutory instruments do not always deal with this issue, and they do not usually cater for the combination in the same instrument of provisions subject to different procedures that are made under different Acts. The purpose of section 40 is to facilitate the combination in a single statutory instrument of provisions that are subject to different procedures, whether they are made under powers in the same Act or different Acts, and to avoid any procedural difficulties that would be caused by combining provisions in this way.

207.Subsection (1) achieves this by providing that, where more than one Assembly procedure would apply, it is only whichever of those procedures is mentioned first in subsection (2) that applies. Subsection (2) then lists the different types of Assembly procedure from the most stringent to the least stringent, starting with the draft affirmative procedure in paragraph (a) and ending with no procedure in paragraph (e).

208.Subsection (3) makes clear that making subordinate legislation in a combined statutory instrument to which this section applies does not prevent the Welsh Ministers making subordinate legislation in separate instruments in the future, or affect the procedure that applies to any separate instruments they make. For example, if regulations under a power that would normally attract the negative procedure have been included in a statutory instrument that is subject to the affirmative procedure, the Welsh Ministers may make further regulations under that power in a separate statutory instrument that is subject to the negative procedure.

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