Section 3 – New Part 2B of the Legislation (Wales) Act 2019
71.Part 2 of the Act consists of section 3, which amends the 2019 Act by inserting a new Part 2B. This new Part deals with the publication, preservation, numbering and classification of Acts of Senedd Cymru, Welsh statutory instruments and other subordinate legislation made by the Welsh Ministers (not as a Welsh statutory instrument). New Part 2B contains sections 37I to 37Z2, information on which is set out below.
Section 37I – The King’s Printer for Wales
72.The history of publishing legislation in Britain and subsequently the United Kingdom reaches back into the 18th century. His Majesty’s Stationery Office (HMSO) was founded in 1786. It is the holder of Crown copyright and has been the official printer and publisher of all Acts of Parliament since 1889. Between 2003 and 2006, HMSO was one of four government bodies that came together to form The National Archives, the official government archive for Wales, England and the United Kingdom.
73.Publishing all UK legislation today is a core part of the remit of the Keeper of Public Records (in his capacity as the King’s Printer of Acts of Parliament and Government Printer of Northern Ireland) and the King’s Printer for Scotland. The Keeper is also the Controller of HMSO and the Chief Executive of The National Archives. The existing legislation is silent on the King’s Printer’s role in the publishing of Welsh legislation, but in practice this is also undertaken by and on behalf of the King’s Printer.
74.The original (as enacted) and revised versions of legislation on the legislation.gov.uk website are published by and under the authority of the Controller of HMSO. The website is managed by The National Archives who are also responsible for The Gazette, the UK’s official public record. The Gazette is managed by The Stationery Office, under the superintendence of The National Archives.
75.Part 2B makes provision to formalise the process for publishing Welsh legislation by conferring functions on a King’s Printer for Wales. The functions of the King’s Printer for Wales to publish Acts of Senedd Cymru, Welsh statutory instruments and related documents are to be exercised by the King’s Printer of Acts of Parliament.
Preservation and publication of Acts of Senedd Cymru
76.The Assembly (now Senedd) Act provisions in Part 4 of the 2006 Act were commenced on 5 May 2011 by the Government of Wales Act 2006 (Commencement of Assembly Act Provisions, Transitional and Saving Provisions and Modifications) Order 2011 (S.I. 2011/1011 (W. 250) (C. 42)). That Order also amended section 115 of the 2006 Act to make provision for the preservation of the Letters Patent and Acts, certified copies of official prints of Acts and numbering of Acts. The provisions about Acts of the Senedd that were inserted by the Order are now restated in the 2019 Act as sections 37J to 37M (and paragraph 5 of Schedule 3 to the Act repeals those provisions from section 115 of the 2006 Act).
Section 37J – Numbering of Acts of Senedd Cymru
77.Section 37J deals with the numbering of Acts of Senedd Cymru by restating the effect of sections 115(5A) and (5B) of the 2006 Act. Additionally, it makes clear for the first time how the prefix and number of an Act of Senedd Cymru is determined. The current method of numbering Acts of the UK Parliament was established in 1962 and replaced the system of citing Acts by session and chapter, which was considered inconvenient. The arrangements for numbering Measures of the National Assembly for Wales adopted a similar numbering convention to the current arrangements for Acts of Parliament (using the prefix “nawm”); this was continued when Acts of the National Assembly for Wales began (but using the prefix “anaw”) and now the prefix “asc” is used to denote Acts of Senedd Cymru.
Section 37K – Official prints and certified copies of Acts of Senedd Cymru
78.The process of publishing and promulgating a piece of legislation begins with the production of the text that is to be published. This must be an authoritative record of the legislation. The authoritative record of an Act of the Senedd is the “official print” that is created currently under section 115(5C) of the 2006 Act, but in future will be done so under section 37K, which also incorporates the requirements currently set out in sections 115(5D) and (5E) of the 2006 Act.
79.As a result the official print of an Act of the Senedd contains not just the text of the Bill that was passed by the Senedd and received Royal Assent, but also the date on and year in which such Assent was notified to the Clerk of the Senedd, the “asc” prefix and number. The Clerk makes a copy of the official print of the Act and certifies it as a true copy (which then becomes known as the “certified copy of the official print”). The official print is sent to the National Library of Wales, see below, and the certified copy is sent to the King’s Printer for Wales.
Section 37L – Preservation of Acts of Senedd Cymru
80.Since 2011, section 115(4A) and (5E) of the 2006 Act have required that the Letters Patent and original print of every Act be sent to the National Library of Wales. This has the effect of creating a permanent preservation of these important records.
81.This requirement to send the original prints of Acts of Senedd Cymru is continued in section 37L. The existing requirement for the Letters Patent remains in section 115(4A) of the 2006 Act.
Section 37M – Publication of Acts of Senedd Cymru
82.Prior to this Act there was no express obligation upon the King’s Printer to publish Acts of Senedd Cymru. Section 37M makes clear that the King’s Printer for Wales must publish the certified copy of the official print of an Act, and must also publish documents related to the Act if asked to do so by either the Clerk of the Senedd or the Welsh Ministers. It is expected that such documents will include Explanatory Notes, and that for consolidation Acts they will include tables of origins and destinations and drafters’ notes; but they could in the future also include impact assessments or other materials.
83.Subsection (3) recognises that most people access legislation online rather than in print now. At present all Acts of the Senedd and Measures of the National Assembly for Wales are available on the legislation.gov.uk website. This is free to access and all the content on there is available under the Open Government Licence (unless where stated). This means that users are encouraged to use and re-use the information freely and flexibly, with only a few conditions. More information is available at: www.nationalarchives.gov.uk/doc/open-government-licence/version/3/
84.The King’s Printer for Wales may also print and sell copies of Acts of Senedd Cymru and must provide printed copies on request if any charges for doing so are paid (see section 37Y).
Preservation and publication of Welsh statutory instruments
85.Prior to the coming into force of this Act, subordinate legislation that is required to be made as a “statutory instrument” attracts the numbering, classification and publication requirements set out in the 1946 Act and the Statutory Instruments Regulations 1947 (S.I. 1948/1) (‘the 1947 Regulations’). The 1946 Act applies to the Welsh Ministers, and instruments made by them, by virtue of sections 1(1A) and 11A of that Act.
86.As a result of Part 1 of this Act, subordinate legislation made by a responsible authority (see section 37B), which includes the Welsh Ministers, will be made as a Welsh statutory instrument, rather than as a statutory instrument to which the 1946 Act applies. The requirements for numbering, classifying, publishing and preserving Welsh statutory instruments are set out in new sections 37N to 37S of the 2019 Act, which are described below.
Section 37N – Official versions and certified copies of Welsh statutory instruments
87.In the same way as for Acts of Senedd Cymru, the process of publishing and promulgating a Welsh statutory instrument begins with the production of the text that is to be published. This must be an authoritative record of the legislation. With Acts of the Senedd, at present, there is a physical document upon which the Clerk must write certain information (see section 37K(2)). This is not necessarily the case with Welsh statutory instruments, which may be made electronically and as such the considerations for ensuring there is an authoritative record differ slightly.
88.Section 37N(1) requires the responsible authority to make certified copies of the instrument that has been made: one certified copy is sent to the National Library for Wales and a further certified copy is sent to the King’s Printer for Wales. Subsection (3)(b) provides that a certified copy may be in electronic form. The only exception to this rule is if the Welsh statutory instrument has been classified as a local instrument (for which see section 37B); in such a case a certified copy of the instrument is not sent to the National Library of Wales (subsection (4)). Local instruments are still sent to the King’s Printer for Wales to enable the publication requirements of section 37Q to be met.
89.When sending a certified copy of a Welsh statutory instrument to the King’s Printer for Wales, the responsible authority is required to also provide the information set out in section 37N(2). This information will in turn be used to meet the publication requirements for Welsh statutory instruments.
Section 37O – Preservation of Welsh statutory instruments
90.To bring consistency with Acts of Senedd Cymru and ensure there is permanent preservation of important records, section 37O requires the National Library of Wales to hold and make available the certified copies of Welsh statutory instruments it receives from the responsible authority.
Section 37P – Numbering and classification of Welsh statutory instruments
91.Section 37P sets out the way the King’s Printer for Wales must number Welsh statutory instruments. The effect is that for each calendar year such instruments will be consecutively numbered (starting from number 1). This follows the approach currently adopted for statutory instruments and other legislation (including Acts of the Senedd, Scottish statutory instruments, Northern Ireland Statutory Rules, etc.)
92.Subsection (3) permits the King’s Printer for Wales to also use a subsidiary number alongside the number from the series of Welsh statutory instruments. The use of subsidiary numbers for instruments numbered under the 1946 Act and 1947 Regulations is a practice that began in the 1950s and has developed over time. For example, a subsidiary number prefixed by a “C” is applied to commencement orders or regulations. Statutory instruments made since 1999 by (originally) the National Assembly for Wales and (subsequently) the Welsh Ministers have been identified by giving them subsidiary numbers prefixed by “W.” (in English) or “Cy.” (in Welsh). In practice such numbering will likely not be required in future because all of those instruments will be made as, and numbered under the series of, Welsh statutory instruments.
Section 37Q – Publication of Welsh statutory instruments
93.Section 37Q continues the obligations established under the 1947 Regulations for the publication of statutory instruments and ensures that the King’s Printer for Wales must publish Welsh statutory instruments. The King’s Printer for Wales must also publish documents related to an instrument if asked to do so by the responsible authority. The current form in which statutory instruments are published includes the Explanatory Note to the instrument, and this is expected to continue. However, additional documents could include maps relating to an instrument, impact assessments or other materials.
94.Subsection (2) sets out certain information that must be included with the subordinate legislation when the King’s Printer publishes the Welsh statutory instrument. Although the date the instrument was made is usually included at the end of the instrument (under the name of the person who made the subordinate legislation), it is also usually included at the front of the document in a helpful note under the title. Alongside this, subsection (2)(e) also requires the King’s Printer to include the date or dates the instrument comes into force, or a description of how the instrument will come into force. This formulation reflects the position that different provisions of the subordinate legislation may come into force at different times and may be linked to specific events or arrangements. It also means that, where the position is complicated, the note may identify the provisions of the instrument that determine when it will come into force (for example, by saying that the instrument comes into force “in accordance with regulation 1”), rather than having to set out the details of those provisions in full.
95.Mirroring the arrangements for publishing Acts of the Senedd, subsection (4) recognises that most people access legislation online rather than in print. The King’s Printer for Wales may also print and sell copies of Welsh statutory instruments (see section 37Y).
Section 37R – Publication of Welsh statutory instruments subject to Senedd confirmation procedure
96.When subordinate legislation is subject to the Senedd confirmation procedure (for which see section 37D and paragraphs 28 to 36 above), section 37R requires the responsible authority to notify the King’s Printer for Wales if the subordinate legislation has been confirmed by the Senedd or has ceased to have effect (if not confirmed). This will enable the King’s Printer for Wales to include information regarding the confirmation with the published instrument. Where an instrument has not been confirmed by the Senedd, section 37E(4)(c) requires the responsible authority to revoke the subordinate legislation. In practice this revocation will be recorded against the online version of the published instrument.
Section 37S – Proceedings for offence under unpublished Welsh statutory instrument: defence
97.Section 3(2) of the 1946 Act provides a defence to proceedings for an offence of contravening a statutory instrument, if that instrument had not been published by the King’s Printer at the time of the offence. The UK Parliament’s Joint Committee on Statutory Instruments considered this provision in their report Transparency and Accountability in Subordinate Legislation(1), noting:
The Committee believes that this provision—which represents a significant exception to the principle that ignorance of the law is no excuse—illustrates the importance attached by Parliament to prompt publication of law once made, and the inherent unfairness of expecting citizens to comply with law that has not been published.
98.Section 37S makes similar provision in respect of subordinate legislation contained within a Welsh statutory instrument, albeit in a more modern form.
99.Section 37W (for which see below) requires the King’s Printer for Wales to publish the date on which each Welsh statutory instrument was published. This may be used in proceedings when it is necessary to establish when an instrument was first published by the King’s Printer for Wales (see section 37X).
Section 37T – Draft Welsh statutory instruments
100.Although copies of certain draft statutory instruments, Scottish statutory instruments and Northern Ireland statutory rules are published online at www.legislation.gov.uk, the Welsh Ministers do not usually ask for drafts of statutory instruments they intend to make to be published there. This is because all draft statutory instruments that are subject to the approval of the Senedd before they can be made are published on the Senedd’s own website (www.senedd.wales). This provides a comprehensive record of draft instruments, with the legislation.gov.uk website providing a full record of all made statutory instruments.
101.Nonetheless, section 37T provides that if the responsible authority asks the King’s Printer for Wales to publish a draft Welsh statutory instrument, the King’s Printer for Wales must publish this online. The Welsh Ministers could, for example, ask for a particular draft instrument to be published if this was considered appropriate. Under section 37Y the King’s Printer may print and sell hard copies of a draft Welsh statutory instrument (but is not required to do so).
Section 37U – Publication of effects of legislation
102.Under regulation 10 of the 1947 Regulations the Secretary of State must “cause to be prepared” a printed document known as the “annual edition”. Regulation 10 also requires the King’s Printer of Acts of Parliament and HMSO to print and publish the annual edition. Within the annual edition (and in accordance with regulation 10(d)) there are to be tables showing the effect on existing enactments of any amendments made to them, by the statutory instruments included in that annual edition (namely, the statutory instruments that have been made in the calendar year to which the annual edition relates).
103.The website operated by The National Archives (on behalf of the King’s Printer of Acts of Parliament), www.legislation.gov.uk, provides access without charge to most (but not all) types of legislation and their accompanying explanatory documents. This includes statutory instruments made by the Welsh Ministers (and previously the National Assembly for Wales), Acts of the Senedd and Measures of the National Assembly.
104.Alongside copies of enactments as they were made or enacted, the website also publishes versions of the enactments in ‘revised form’. ‘Revised’ in this context means that amendments made by subsequent legislation are incorporated into the text shown online. For each enactment, the website also includes a table listing each amendment that the enactment makes to earlier legislation, and a table listing each amendment that subsequent legislation makes to the enactment and showing the derivation of the amendment.
105.Section 37U therefore requires the King’s Printer for Wales to publish online tables showing the effects made to enactments by Acts of the Senedd or Welsh statutory instruments. In practice this information will be published on the legislation.gov.uk website (currently this is shown on the “More Resources” tab of an Act or instrument).
Section 37V – Publication of Welsh legislation as amended
106.As noted above the legislation.gov.uk website publishes legislation in ‘revised form’. This means that amendments made to legislation by subsequent legislation are shown as incorporated into the text. In other words, the legislation is published in up-to-date form.
107.A limited amount of legislation in revised form was first made available online to the public in December 2006 on the UK Statute Law Database. In July 2010, the legislation.gov.uk website was launched, incorporating both the revised legislation content from the Statute Law Database and the ‘as enacted’ legislation from the website of the Office of Public Sector Information (known as OPSI). Several sources were used to build the revised legislation records and for a number of years efforts were concentrated on incorporating amendments to primary legislation, so that Acts of the four UK legislatures in revised form are made available. More recently work has been underway to also make statutory instruments available in revised form. As well as reflecting new amendments to statutory instruments on the legislation.gov.uk website, a similar backlog of amendments previously made is also being worked through.
108.Section 37V requires the King’s Printer for Wales to publish, online, Welsh legislation as it has been amended by any other enactment. In practice, this will be the revised form of Acts of the Senedd, Assembly Measures and Welsh statutory instruments, made available on the legislation.gov.uk website. This is to be done “so far as practicable” from the time an amendment comes into force. The extent to which this is practicable will depend on a number of factors, including the time between the legislation effecting the change being enacted or made and it coming into force, the (overall) amount of legislation that is published during that period, the complexity of the provisions and the extent to which older amendments also need to be reflected in order for an enactment to be up-to-date.
Section 37W – Record of Welsh legislation
109.Section 37W requires the King’s Printer to maintain and publish an online record of basic information regarding each Act of the Senedd and Welsh statutory instrument. This includes the date upon which each was published. In practice this will be the date it was first published (information that is necessary to establish whether the defence of non-publication at section 37S may be relevant), together with the subsequent dates of any additional publication.
Section 37Y – Printing and selling Welsh legislation and related documents
110.Section 37Y provides for the King’s Printer for Wales to print and sell Welsh legislation and documents associated with Welsh legislation. This includes legislation that has already been enacted or made by the Welsh Ministers, Senedd Cymru and formerly the National Assembly for Wales. It also provides the legislative basis for the printing and sale of future enactments (Acts of the Senedd and Welsh statutory instruments).
111.In accordance with the Legal Deposit Libraries Act 2003 (c. 28), the National Library of Wales and the other legal deposit libraries(2) currently receive copies of each printed statutory instrument made by the Welsh Ministers (in other words, all instruments that have not been classified as local instruments) and a copy of each Act of the Senedd. These are provided to them on behalf of the King’s Printer. This arrangement will continue and is unaffected by section 37Y or Part 2B more widely.
Section 37Z – Welsh Ministers to publish subordinate legislation not made by statutory instrument
112.Occasionally provision is made in an Act of the Senedd regarding the publication of subordinate legislation that is not in the form of a statutory instrument. For example, under section 15 of the Tax Collection and Management (Wales) Act 2016, the Welsh Ministers must publish any general directions they give the Welsh Revenue Authority. Similarly, section 19 of Health and Social Care (Quality and Engagement) (Wales) Act 2020 makes provision for the publication of a Code of Practice.
113.More widely though there are no overarching requirements upon the Welsh Ministers to publish subordinate legislation made by them when it is not in the form of a statutory instrument (or Welsh statutory instrument). In practice most subordinate legislation not in the form of a statutory instrument is published on the Welsh Government’s website: www.gov.wales
114.Nonetheless the Counsel General and Welsh Ministers have, in their programme to improve the accessibility of Welsh law (The Future of Welsh Law (revised 2023), Welsh Government), committed to strengthen the publication arrangements for subordinate legislation. Section 37Z places a duty on the Welsh Ministers to number, classify and publish online all subordinate legislation made by them when it is not in the form of a Welsh statutory instrument.
115.Section 37Z does not detail the arrangements for numbering and classification of subordinate legislation, but instead at subsection (2) requires the Welsh Ministers to prepare and publish a determination on these arrangements.
Section 37Z1 – References to Welsh statutory instruments
116.Section 37Z1 makes provision about how a Welsh statutory instrument may be referred to (this is sometimes known as ‘cited’ when the reference is in other legislation). Firstly it provides the Welsh statutory instrument may be referred to by its title in either Welsh or English. All statutory instruments currently include provision (usually in the first regulation, rule or article of the subordinate legislation) about the name of the instrument. Arguably however that provision does not come into force until the date specified in the commencement provision. Therefore any ambiguity as to whether the instrument may be referred to by its title before that provision is in force is removed and instead section 37Z1 ensures the instrument may be referred to by its title from the moment it is made.
117.Section 37Z1 also provides the Welsh statutory instrument may be referred to by its prefix, year and number. The example given in section 37Z1 is “W.S.I. 2026/1”. There is no requirement or expectation that any subsidiary number applied to the instrument (see section 37P(3)) forms part of the reference by which an instrument may be referred.
Section 37Z2 – The King’s Printer for Wales: delegation of functions
118.Section 37Z2 makes clear the King’s Printer for Wales may delegate any of the functions conferred on him by Part 2B (whilst remaining responsible for carrying out the functions and anything done by the delegate is to be treated as if done by the King’s Printer for Wales).
119.Section 37Z2 enables the King’s Printer for Wales to contract out the printing and selling of Welsh statutory instruments, for example, as is done currently in relation to statutory instruments.
First Special Report of Session 2017–19 (2018), HL Paper No.151; HC Paper No.1158
The British Library, the National Library of Scotland and the libraries of Oxford and Cambridge Universities and Trinity College Dublin: see section 14 of the 2003 Act.
