Subordinate legislation can only be made if primary legislation confers a power to do so. The primary legislation is known as the enabling act, because it enables the subordinate legislation to be made. In Wales, the Welsh Ministers make subordinate legislation using powers given to them in enabling acts such as Assembly Acts, Assembly Measures and Acts of the UK Parliament. Subordinate legislation is also often referred to as delegated legislation, because the power to make subordinate legislation is delegated by the enabling act. Subordinate legislation is also referred to as secondary legislation.
For example, under section 33(3) of the Regulation and Inspection of Social Care (Wales) Act 2016, "The Welsh Ministers may by regulations make provision about the qualifications and other conditions to be met by an individual who may be an inspector".
In this example, the enabling act is the Regulation and Inspection of Social Care (Wales) Act 2016, and section 33(3) of that Act enables the Welsh Ministers to make subordinate legislation (in the form of regulations) about the qualifications of social care inspectors. Without that enabling power, the Welsh Ministers could not make subordinate legislation about the qualifications of social care inspectors.
In Wales, Welsh statutory instruments are the most common form of subordinate legislation and usually take the form of regulations or orders. Other forms of subordinate legislation can include codes of practice, rules, schemes or guidance.
Subordinate legislation is usually made as a statutory instrument. This means that the rules set out in the Statutory Instruments Act 1946 will apply to the subordinate legislation.
In relation to statutory instruments, the role of the Constitutional and Legislative Affairs Committee is to consider and report to the National Assembly against criteria set out in the following Standing Orders:
- Standing Order 21.2 – for example, matters that might call into question the legality of a statutory instrument or whether a statutory instrument is in both English and Welsh. The Committee must consider and report on these matters. Matters reported under Standing Order 21.2 are known as technical reporting points.
- Standing Order 21.3 – for example, matters that are likely to be of interest to the Assembly, such as a statutory instrument that does not implement policy in the way claimed or that is considered to be politically contentious or significant. The Committee may consider and report on these matters. Matters reported under Standing Order 21.3 are known as merits reporting points.
If the Committee is content with a statutory instrument, it is referred to as having a clear report. If the Committee is not content with a statutory instrument, it will issue a report in accordance with Standing Order 21.2 and/or Standing Order 21.3. Such reports inform the Assembly of any issues that arise in relation to statutory instruments; the Committee's reports do not constitute any form of veto as regards statutory instruments. Under Standing Order 21.4 the Committee must report within 20 days of a statutory instrument being laid before the Assembly.
Under section 11A(4) of the Statutory Instruments Act 1946, if a negative procedure statutory instrument made by the Welsh Ministers is not laid before the Assembly at least 21 days before the statutory instrument comes into force (i.e. has effect), the Welsh Government must notify the Presiding Officer and explain why there has been a breach of the "21 day rule".
The procedures relevant to the consideration of statutory instruments by the Assembly are set out in Standing Order 27 (but note Standing Order 27.14 which applies Standing Order 27 to subordinate legislation that is not in the form of a statutory instrument).
The negative procedure provides that, after the Welsh Ministers have exercised their power to make subordinate legislation, they must lay the subordinate legislation before the Assembly. The Assembly then has a period of 40 days to object to the subordinate legislation. If the Assembly does not object, then the subordinate legislation continues to have effect (it 'continues' to have effect because the subordinate legislation will have automatically taken effect as soon as it was made available to the public). If the Assembly does object, then the subordinate legislation is annulled and nothing further can be done under the subordinate legislation. Most subordinate legislation made by the Welsh Ministers follow this procedure.
The affirmative procedure provides that the Welsh Ministers cannot exercise their power to make subordinate legislation unless the Assembly has passed a resolution approving a draft of the subordinate legislation. The subordinate legislation is therefore laid before the Assembly in draft form, and cannot have effect unless the draft is approved by the Assembly. This procedure is often reserved for more significant subordinate legislation.
A very small proportion of subordinate legislation is subject to specific procedures set out in the enabling act. These procedures include: (i) enhanced affirmative procedures (sometimes known as super-affirmative procedures), see for example the procedure set out in section 19 of the Public Bodies Act 2011; (ii) the provisional affirmative procedure, see for example the procedure set out in sections 25(2) and (3) of the Land Transaction Tax and Anti-avoidance of Devolved Taxes (Wales) Act 2017; and (iii) the draft negative procedure, see for example the procedure set out in sections 144ZF(5) to (7) of the Water Industry Act 1991.
Some subordinate legislation follows a special Assembly procedure, meaning it cannot be made or confirmed by the Welsh Ministers until the procedures laid down by Standing Order 28 have been complied with.
Some subordinate legislation is not subject to any formal procedure other than it must be laid before the Assembly. Some subordinate legislation does not even have to be laid before the Assembly. For example, commencement orders (i.e. subordinate legislation that specifies a date when primary legislation comes into force) usually are not subject to any formal procedure and do not have to be laid before the Assembly. The Welsh Ministers notify the Committee of commencement orders, but they are not usually scrutinised by the Committee.
Subordinate legislation must be laid before the National Assembly at least 21 days before it comes into effect. If this rule is breached, the Welsh Government has to notify the Presiding Officer of the reasons.
Sometimes, the enabling act will say that subordinate legislation must be made jointly by both the Welsh Ministers and UK Ministers acting together. This kind of subordinate legislation must be laid before both the Assembly and the UK Parliament. The enabling act will specify what procedure applies.
Section 109 of the Government of Wales Act 2006 allows Her Majesty, by Order in Council, to amend Schedule 7 to the 2006 Act, provided that a draft of the Order has first been approved by the Assembly and both Houses of Parliament.
Standing Order 25 provides for the procedure to be followed in respect of the consideration of Orders in Council that are to be made under section 109 of the Government of Wales Act 2006.
The following subordinate legislation was laid before the Assembly at a point that did not allow time for consideration by the Fourth Assembly's Constitutional and Legislative Affairs Committee.