Section 1 – New Part 2A of the Legislation (Wales) Act 2019
11.This section amends the 2019 Act by inserting a new Part 2A and three new Schedules. New Part 2A contains sections 37A to 37H and Schedules 1A, 1B and 1C, information on which is set out below.
Section 37A – Welsh statutory instruments
12.Section 37A contains the definition of a “Welsh statutory instrument”. It is a document that contains “Welsh subordinate legislation”. The term “subordinate legislation” by itself is defined in Schedule 1 to the 2019 Act and means things such as orders, regulations and rules. However, for such things to fall within the meaning of the term “Welsh subordinate legislation” the legislation must be made by the Welsh Ministers or a devolved Welsh authority. This requirement means that if the Welsh Ministers are acting with another person who is not a devolved Welsh authority to make the subordinate legislation (for example, a Secretary of State) then the resulting instrument will continue to be made as a statutory instrument. Similarly, an Order in Council made solely in relation to Wales would continue to be made as a statutory instrument.
13.The Government of Wales Act 2006 (c. 32) (‘the 2006 Act’) provides the meaning of the “
14.The 2006 Act also defines “
15.One of the effects of section 37A is that all existing statutory instruments that have been made by the Welsh Ministers or a devolved Welsh authority, where they have not made the legislation with another person, will become Welsh statutory instruments. Although in practice this changes very little, it places on a statutory footing the classification that the King’s Printer of Acts of Parliament had been using to identify statutory instruments made by the Welsh Ministers (and previously the National Assembly for Wales) since 1999.
16.Another effect is that the Statutory Instruments Act 1946 (c. 36) (‘the 1946 Act’) will no longer apply to the existing instruments that fall within the definition of “
17.Existing requirements for the Welsh Ministers and devolved Welsh authorities to make particular pieces of subordinate legislation as a statutory instrument are ‘converted’ to requirements to make that legislation as a Welsh statutory instrument. This is the effect of section 37H and Schedule 1A (see below).
18.Instead of providing that a particular piece of subordinate legislation is to be made as a “
Section 37B – Interpretation
19.This section sets out the meaning of the term “responsible authority” that is used in both Parts 2A and 2B. It means the body or person who made the subordinate legislation in question, except in the case of subordinate legislation that was also confirmed or approved by the Welsh Ministers, the First Minister or the Counsel General. In such a case the “responsible authority” is the Welsh Ministers.
20.A person who is a “responsible authority” has certain functions under both Parts. For example, if a particular piece of subordinate legislation made by the Welsh Ministers is subject to “Senedd annulment procedure” and is annulled, the Welsh Ministers (as the “responsible authority” for that legislation) must revoke the subordinate legislation (see section 37E(4)).
21.As another example, under section 37N the responsible authority for a Welsh statutory instrument must send a certified copy of that instrument to the National Library of Wales (so it may be preserved) and to the King’s Printer for Wales (so it may be published).
22.This section also explains how a decision by the responsible authority to classify a Welsh statutory instrument as a “local instrument” is to be made. Local instruments tend to be limited in their application to a particular area or particular individuals or persons and therefore are unlikely to be of general application or interest. Local instruments do not need to be laid before the Senedd (under section 37F) or sent to the National Library of Wales for preservation (under section 37N).
Section 37C – Senedd approval procedure
23.Section 37C defines what it means when an enactment provides that subordinate legislation that is to be made as a Welsh statutory instrument is subject to the “Senedd approval procedure”.
24.Such subordinate legislation can only be made if a draft of the Welsh statutory instrument has been laid before the Senedd and subsequently approved by it. Approval is by way of a resolution (in this case, a decision following debate in Plenary).
25.New section 12A of the 2019 Act explains what is meant by laying a document before Senedd Cymru (see also paragraph 215 below).
26.For the application of this procedure to new subordinate legislation made by a responsible authority under enactments that were made or enacted before Part 2A comes into effect, see section 37H and Schedule 1A. For such subordinate legislation made by the Welsh Minsters acting with another person (not a devolved Welsh authority) or as an Order in Council, see Schedules 1B and 1C respectively.
Section 37D – Senedd confirmation procedure
27.Section 37D defines what is meant when an enactment provides that subordinate legislation that is to be made as a Welsh statutory instrument is subject to the “Senedd confirmation procedure”.
28.This procedure is the equivalent of the so-called ‘made affirmative’ procedure found in certain existing legislation. Parliaments (including Senedd Cymru) have enacted legislation which permits subordinate legislation to be made under this procedure where there is an expectation that the maker of the subordinate legislation would need to take urgent action, but such action needs to be confirmed by the legislature for those arrangements to become permanent. For example, in relation to a health protection emergency such as the recent coronavirus pandemic or to swiftly make changes to tax thresholds or exemptions.
29.Subordinate legislation made subject to the Senedd confirmation procedure is made by the person who has the power to make the legislation and the Welsh statutory instrument is then laid before the Senedd, as soon as possible after the subordinate legislation is made. The subordinate legislation cannot continue to have effect or come into force at a future point, unless the Senedd subsequently confirms it through a resolution.
30.Enactments that prescribe that a particular piece of subordinate legislation is to be made by the Senedd confirmation procedure will usually also prescribe the point in time by which confirmation of the Senedd must be given. Alternatively, the enactment may specify a particular event by which confirmation of the Senedd must be given. For example, the enactment may prescribe that confirmation of the Senedd must be given within 28 days of the subordinate legislation being made, not counting any time when the Senedd is in recess or dissolved. Or, by way of further example, the enactment could prescribe that the Senedd must give its confirmation before a budget resolution is passed.
31.Subordinate legislation made under the Senedd confirmation procedure therefore ceases to have effect if the Senedd does not confirm it because it does not agree that the subordinate legislation should continue (the resolution is not passed) or the passage of time for which it can remain in force expires or the situation relating to the prescribed event occurs (meaning the Senedd cannot be asked to confirm it).
32.Subsection (4) provides that where the subordinate legislation ceases to have effect, if it is not already in force it will not come into force (and if it is partly in force it will not fully come into force). Where the subordinate legislation was already in force or partly in force at the point it ceased to have effect, nothing further can be done or relied upon under it. The responsible authority must, by an order made under section 37D(4)(c) then revoke it. Revocation will help to avoid confusion for future readers of the legislation who may not otherwise realise the subordinate legislation no longer has effect. The order that revokes the subordinate legislation must laid before the Senedd in accordance with section 37F and be made by Welsh statutory instrument.
33.Where subordinate legislation ceases to have effect, anything that was done under it remains valid and further subordinate legislation can still be made (see subsection (5)).
34.New section 12A of the 2019 Act explains what is meant by laying a document before Senedd Cymru (see also paragraph 215 below).
35.For the application of this procedure to new subordinate legislation made by a responsible authority under enactments that were made or enacted before Part 2A comes into effect, see section 37H and Schedule 1A. For such subordinate legislation made by the Welsh Minsters acting with another person (not a devolved Welsh authority) see Schedule 1B.
Section 37E – Senedd annulment procedure
36.Section 37E defines what is meant when an enactment provides that subordinate legislation that is to be made as a Welsh statutory instrument is subject to the “Senedd annulment procedure”.
37.Under this procedure the legislation is made by the person with the power to make it, laid before the Senedd and comes into force. However, if the Senedd decides (through a resolution), before the end of 40 days beginning with the date on which the subordinate legislation was laid before it, that the legislation should not continue in effect, the legislation no longer has effect.
38.As such section 37E provides that:
the subordinate legislation must be laid before the Senedd as soon as practicable after it is made (subsection (2)). Furthermore, it should be laid at least 21 days before it comes into force. If it comes into force in less than 21 days after being laid, then the responsible authority must write to the Senedd’s Presiding Officer, known as the Llywydd, to explain why (see subsections (6) and (7)).
beginning with the date on which the subordinate legislation was laid, the Senedd has 40 days in which to consider whether it wishes to resolve that the legislation be annulled (subsection (3)). In practice this would mean a Member of the Senedd laying a motion before the Senedd that the legislation be annulled, this being debated by the Senedd and a majority of voting members agreeing with the motion.
if the subordinate legislation is annulled, if it is not already in force it will not come into force or if it is partly in force it will not come fully into force (subsection (4)); or where the subordinate legislation was already in force (or partly in force) at the point or it was annulled, nothing further can be done or relied upon under it. The responsible authority must, by order, then revoke the subordinate legislation. That order must be laid before the Senedd in accordance with section 37F and must be made by Welsh statutory instrument.
where subordinate legislation is annulled, anything that was done under it remains valid and further subordinate legislation can still be made (subsection (5)).
39.The periods of 21 and 40 days in this section are to be calculated ignoring any time that the Senedd is in recess for more than four days or is dissolved (subsection (8)).
40.New section 12A of the 2019 Act explains what is meant by laying a document before Senedd Cymru (see also paragraph 215 below).
41.For the application of this procedure to new subordinate legislation made by a responsible authority under enactments that were made or enacted before Part 2A comes into effect, see section 37H and Schedule 1A. For such subordinate legislation made by the Welsh Minsters acting with another person (not a devolved Welsh authority) or as an Order in Council, see Schedules 1B and 1C respectively.
Section 37F – Other Welsh statutory instruments to be laid before Senedd Cymru
42.Section 37F provides a ‘default’ position for what is to happen in relation to all subordinate legislation made by Welsh statutory instrument that is not subject to one of the procedures set out in sections 37C, 37D or 37E. In such cases it must be laid before the Senedd.
43.The instrument must be laid before the Senedd as soon as practicable after it is made. If that is after the subordinate legislation has come into force the responsible authority must explain to the Llywydd, in writing, why the subordinate legislation was not laid before it came into force (subsections (4) and (5)).
44.New section 12A of the 2019 Act explains what is meant by laying a document before Senedd Cymru (see also paragraph 215 below).
45.Although section 37F provides this default provision, by virtue of subsection (2) it does not include subordinate legislation made in a Welsh statutory instrument that has been classified by the responsible authority as a local instrument (for which see section 37B(4)), one made under the special Senedd procedure (for which see subsection (6) and the Senedd’s Standing Order 28) or one made under an enactment listed in future regulations made by the Welsh Ministers under section 37F(2)(c). Any such regulations must be made subject to the Senedd approval procedure set out in section 37C (see section 43 of the 2019 Act, as substituted by Schedule 3 of this Act).
46.For the application of this requirement to new subordinate legislation made by a responsible authority under enactments that were made or enacted before Part 2A comes into effect, see section 37H and Schedule 1A. For such subordinate legislation made by the Welsh Minsters acting with another person (not a devolved Welsh authority) or as an Order in Council, see Schedules 1B and 1C respectively. In such cases, this will mean that in cases where subordinate legislation made by statutory instrument (or now as a Welsh statutory instrument) would not have had to be laid before the Senedd, it will now be laid.
47.The result is that all subordinate legislation made by Welsh statutory instrument (as well as certain statutory instruments and Orders in Council) and not subject to a Senedd procedure will, unless subsection (2) or its equivalent in the relevant Schedule applies, be laid before the Senedd.
Section 37G – Combining subordinate legislation subject to different Senedd procedures
48.Section 37G makes provision about the combination in a single Welsh statutory instrument of subordinate legislation made by a responsible authority using different powers to which different Senedd 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 Senedd approval procedure and some provisions that would attract the Senedd annulment procedure, this section means that the Senedd approval procedure applies to the whole instrument (and that the Senedd annulment procedure does not apply).
49.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 would be subject to (or read as being subject to) the Senedd approval procedure (whether or not it also contains regulations under other powers), and that the Senedd annulment 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 the Senedd approval procedure).
50.However, provisions about Senedd procedure for Welsh 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 37G 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.
51.Subsection (2) achieves this by providing that, where more than one Senedd procedure would apply, it is only whichever of those procedures is mentioned first in subsection (3) that applies. Subsection (3) then lists the different types of Senedd procedure from the most stringent to the least stringent, starting with the Senedd approval procedure in paragraph (a) and ending with no procedure in paragraph (d).
52.Subsection (4) makes clear that making subordinate legislation in a combined statutory instrument to which this section applies does not prevent the responsible authority making subordinate legislation in separate instruments in the future, or affect the procedure that applies to the subordinate legislation contained in any separate instruments they make. For example, if regulations under a power that would normally attract the Senedd annulment procedure have been included in a Welsh statutory instrument that is subject to the Senedd approval procedure, the Welsh Ministers may make further regulations under that power in a separate Welsh statutory instrument that is subject to the Senedd annulment procedure.
53.This section was originally section 40 of the 2019 Act, but has been restated within the 2019 Act as section 37G and modified to:
firstly, reflect the simplified and codified Senedd procedures,
secondly, extend the power from simply being available to the Welsh Ministers to all responsible authorities who may make a Welsh statutory instrument, and
thirdly, reflect the fact that most Welsh statutory instruments will not require to be laid before the Senedd.
54.The power to combine subordinate legislation subject to different Senedd procedures applies both to legislation made under future enactments as well as to legislation made under pre-commencement enactments (by virtue of section 37H and Schedule 1A).
Section 37H – Application of this Part in different circumstances
55.Section 37H introduces Schedules 1A, 1B and 1C that apply the provisions in Part 2A (in some cases with modifications) to subordinate legislation made under existing and future enactments in particular circumstances.
Schedule 1A - Application of Part 2A to pre-commencement enactments
56.This Schedule applies the provisions of Part 2A to Welsh subordinate legislation made by statutory instrument under “pre-commencement enactments”, in other words enactments that were enacted or made before Part 2A comes into effect.
57.Schedule 1A has the effect that where existing powers of the Welsh Ministers or a devolved Welsh authority provide that subordinate legislation made under those powers is to be made as a “
Table A – Effect of Schedule 1A on pre-commencement enactments
| Pre-commencement enactment provisions | Effect of Schedule 1A |
| A draft of the statutory instrument containing the subordinate legislation is laid before, and approved by resolution of, Senedd Cymru (known as a ‘draft affirmative’ instrument) – see paragraph 3(1)(a) of Schedule 1A | Subordinate legislation is made as a Welsh statutory instrument under the Senedd approval procedure – paragraph 3(2) of Schedule 1A |
| The subordinate legislation is made but cannot come into force unless the statutory instrument containing it is laid before, and approved by resolution of, Senedd Cymru (known as an ‘affirmative’ instrument) – see paragraph 3(1)(b) of Schedule 1A | |
| The subordinate legislation is made but ceases to have effect unless the statutory instrument containing it is approved by resolution of Senedd Cymru before— (a) the end of a period specified in the enactment, or (b) an event specified in the enactment occurs (known as a ‘made affirmative’ instrument) – see paragraph 4(1) of Schedule 1A | Subordinate legislation is made as a Welsh statutory instrument under the Senedd confirmation procedure – see paragraph 4(2) of Schedule 1A |
| The subordinate legislation is made as a statutory instrument but is subject to annulment in pursuance of a resolution of Senedd Cymru (known as a ‘negative’ instrument) – see paragraph 5(1)(a) of Schedule 1A | Subordinate legislation is made as a Welsh statutory instrument under the Senedd annulment procedure – see paragraph 5(2) of Schedule 1A |
| The statutory instrument may be laid before Senedd Cymru in draft but the subordinate legislation cannot be made if Senedd Cymru resolves that it should not be made within 40 days of it being laid (known as a ‘draft negative’ instrument) – see paragraph 5(1)(b) of Schedule 1A | |
| The subordinate legislation is not subject to any procedure but the statutory instrument containing it must be laid before the Senedd (known as ‘no procedure but laid’) – see paragraph 6(1) of Schedule 1A | Subordinate legislation is made as a Welsh statutory instrument and laid before the Senedd – see paragraph 6(2), and note exceptions at paragraph 6(3), of Schedule 1A |
| The subordinate legislation is not subject to any procedure and no requirement to lay the statutory instrument before the Senedd (known as ‘no procedure’) – see paragraph 6(1) of Schedule 1A |
58.The Welsh Ministers may, by regulations, amend enactments to reflect the effect of Schedule 1A (see paragraph 7 of this Schedule). This could be used, for example, to replace existing references to “instruments being subject to annulment in pursuance of a resolution of Senedd Cymru”, with a reference to the Welsh statutory instrument being made “under the Senedd annulment procedure”.
Schedule 1B - Application of Part 2A to joint or composite legislation
59.This Schedule applies the provisions of Part 2A to subordinate legislation made by the Welsh Ministers and another person (other than a devolved Welsh authority) by statutory instrument. Some enactments require the Welsh Ministers to make subordinate legislation jointly with another person, for example a Secretary of State (the result is known as a “joint instrument”). Sometimes the Welsh Ministers and Secretary of State may choose to exercise their powers to make subordinate legislation in a single instrument (this is known as a “composite instrument”). Schedule 1B applies Part 2A to joint or composite instruments made under “pre-” and “post-commencement enactments”, in other words enactments that were enacted or made before and after Part 2A comes into force.
60.In relation to pre-commencement enactments Schedule 1B has the effect that the subordinate legislation will continue to be made as a “
Table B – Effect of Schedule 1B for pre-commencement enactments (joint or composite instruments)
| Pre-commencement enactment provisions | Effect of Schedule 1B |
| A draft of the statutory instrument containing the subordinate legislation is laid before, and approved by resolution of, Senedd Cymru (known as a ‘draft affirmative’ instrument) – see paragraph 3(1)(a) of Schedule 1B | Subordinate legislation is made as a statutory instrument under the modified Senedd approval procedure set out at paragraph 12 of Schedule 1B |
| The subordinate legislation is made but cannot come into force unless the statutory instrument containing it is laid before, and approved by resolution of, Senedd Cymru (known as an ‘affirmative’ instrument) – see paragraph 3(1)(b) of Schedule 1B | |
| The subordinate legislation is made but ceases to have effect unless the statutory instrument containing it is approved by resolution of Senedd Cymru before— (a) the end of a period specified in the enactment, or (b) an event specified in the enactment occurs (known as a ‘made affirmative’ instrument) – see paragraph 4(1) of Schedule 1B | Subordinate legislation is made as a statutory instrument under the modified Senedd confirmation procedure set out at paragraph 13 of Schedule 1B |
| The subordinate legislation is made as a statutory instrument but is subject to annulment in pursuance of a resolution of Senedd Cymru (known as a ‘negative’ instrument) – see paragraph 5(1)(a) of Schedule 1B | Subordinate legislation is made as a statutory instrument under the modified Senedd annulment procedure set out at paragraph 14 of Schedule 1B |
| The statutory instrument may be laid before Senedd Cymru in draft but the subordinate legislation cannot be made if Senedd Cymru resolves that it should not be made within 40 days of it being laid (known as a ‘draft negative’ instrument) – see paragraph 5(1)(b) of Schedule 1B | |
| The subordinate legislation is not subject to any procedure but the statutory instrument containing it must be laid before the Senedd (known as ‘no procedure but laid’) – see paragraph 6(1) of Schedule 1B | Subordinate legislation is made as a statutory instrument and laid before the Senedd under section 37F as modified (see paragraph 15 of Schedule 1B) |
| The subordinate legislation is not subject to any procedure and there is no requirement to lay the statutory instrument before the Senedd (known as ‘no procedure’) – see paragraph 6(1) of Schedule 1B |
61.In relation to post-commencement enactments the subordinate legislation will be made as a “
Table C – Effect of Schedule 1B for post-commencement enactments (joint or composite instruments)
| Post-commencement enactment provisions | Effect of Schedule 1B |
| Subordinate legislation subject to “Senedd approval procedure” – see paragraph 8(1) of Schedule 1B | Subordinate legislation is made as a statutory instrument under the modified Senedd approval procedure set out at paragraph 12 of Schedule 1B |
| Subordinate legislation subject to “Senedd confirmation procedure” – see paragraph 9(1) of Schedule 1B | Subordinate legislation is made as a statutory instrument under the modified Senedd confirmation procedure set out at paragraph 13 of Schedule 1B |
| Subordinate legislation subject to “Senedd annulment procedure” – see paragraph 10(1) of Schedule 1B | Subordinate legislation is made as a statutory instrument under the modified Senedd annulment procedure set out at paragraph 14 of Schedule 1B |
| The subordinate legislation is not subject to a Senedd procedure – see paragraph 11(1) of Schedule 1B | Subordinate legislation is made as a statutory instrument and laid before the Senedd under section 37F as modified (see paragraph 15 of Schedule 1B) |
62.The Welsh Ministers may, by regulations, amend enactments to make provision to reflect the effect of Schedule 1B (see paragraph 16 of this Schedule).
Schedule 1C - Application of Part 2A to Orders in Council
63.This Schedule applies the provisions of Part 2A to subordinate legislation made as an Order in Council when the statutory instrument must be laid before the Senedd. Schedule 1C applies Part 2A to Orders in Council made under “pre-” and “post-commencement enactments”, in other words enactments that were enacted or made before and after Part 2A comes into force.
64.In relation to pre-commencement enactments Schedule 1C ensures that the Order in Council will continue to be made as a “
Table D – Effect of Schedule 1C for pre-commencement enactments (Orders in Council)
| Pre-commencement enactment provisions | Effect of Schedule 1C |
| A draft of the statutory instrument containing the Order in Council is laid before, and approved by resolution of, Senedd Cymru (known as a ‘draft affirmative’ instrument) – see paragraph 3(1)(a) of Schedule 1C | Subordinate legislation is made as a statutory instrument under the modified Senedd approval procedure set out at paragraph 10 of Schedule 1C |
| The Order in Council may be made but cannot come into force unless the statutory instrument containing it is laid before, and approved by resolution of, Senedd Cymru (known as an ‘affirmative’ instrument) – see paragraph 3(1)(b) of Schedule 1C | |
| The Order in Council is made as a statutory instrument but is subject to annulment in pursuance of a resolution of Senedd Cymru (known as a ‘negative’ instrument) – see paragraph 4(1) of Schedule 1C | Subordinate legislation is made as a statutory instrument under the modified Senedd annulment procedure set out at paragraph 11 of Schedule 1C |
| The Order in Council is not subject to any procedure but the statutory instrument containing it must be laid before the Senedd (known as ‘no procedure but laid’) – see paragraph 5(1) of Schedule 1C | Subordinate legislation is made as a statutory instrument and laid before the Senedd under section 37F as modified (see paragraph 12 of Schedule 1C) |
| The Order in Council is not subject to any procedure and there is no requirement to lay the statutory instrument before the Senedd (known as ‘no procedure’) – see paragraph 5(2) of Schedule 1C |
65.In relation to post-commencement enactments the Order in Council will be made as a “
Table E – Effect of Schedule 1C for post-commencement enactments (Orders in Council)
| Post-commencement enactment provisions | Effect of Schedule 1C |
| Order in Council subject to “Senedd approval procedure” – see paragraph 7(1) of Schedule 1C | Order in Council made as a statutory instrument under the modified Senedd approval procedure set out at paragraph 10 of Schedule 1C |
| Order in Council subject to “Senedd annulment procedure” – see paragraph 8(1) of Schedule 1C | Order in Council made as a statutory instrument under the modified Senedd annulment procedure set out at paragraph 11 of Schedule 1C |
| The Order in Council is not subject to any procedure but the statutory instrument containing it must be laid before the Senedd – see paragraph 9(1) of Schedule 1C | Order in Council made as a statutory instrument and laid before the Senedd under section 37F as modified (see paragraph 12 of Schedule 1C) |
| The Order in Council is not subject to any procedure and there is no requirement to lay the statutory instrument before the Senedd – see paragraph 9(2) of Schedule 1C |
66.The Welsh Ministers may, by regulations, amend enactments to reflect the effect of Schedule 1C (see paragraph 13 of this Schedule).
