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Adoption and Children Act 2002

Section 140: Orders, rules and regulations

338.Section 140 provides that all subordinate legislation such as regulations, orders and rules made by the Lord Chancellor, the Secretary of State, the Scottish Ministers, the Assembly or the Registrar General under the Act is to be made by statutory instrument.  A default order made under section 14 and a commencement order made under section 148 is not to be subject to any parliamentary scrutiny.  Any statutory instruments made under sections 92(6), 94 or 122(6) (respectively amendments to list of prohibited steps, restrictions on reports and amendments to restrictions on advertising in light of advances in technology) or other instruments which amend primary legislation are subject to the affirmative procedure.  In addition, regulations made under section 9 which include provision for ensuring that adoption agencies give proper regard to the need for stability and permanence in the relationship of a couple in determining their suitability to adopt (as set out in section 45(2)) will be subject to the affirmative resolution procedure

339.Specific provision is made in section 86 to provide that the statutory instrument containing the first set of regulations is to be subject to the affirmative resolution procedure and for section 140(2) not to apply to that instrument.  Section 140(2), and therefore the negative resolution procedure, will apply to subsequent statutory instruments containing regulations to be made under section 86.

340.All other subordinate legislation except an Order in Council or subordinate legislation made by Scottish Ministers, the National Assembly for Wales and the Northern Ireland Assembly will be subject to the negative resolution procedure.  An Order in Council made under section 125 which relates to the Adoption and Children Act Register will, by virtue of section 131, be subject to the affirmative resolution procedure in each of the countries to which the Register is to apply.  An Order in Council under section 137 is subject to the negative resolution procedure in line with the provisions in the British Nationality Act.  Subordinate legislation made by the Scottish Ministers, the National Assembly for Wales and the Northern Ireland Assembly will be subject to the scrutiny of those administrations.  Where the subordinate legislation is made jointly by the Secretary of State and the Assembly it will be subject to parliamentary scrutiny in the Westminster parliament.

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