Welsh statutory instrument

Last updated

A Welsh statutory instrument (WSI; Welsh : is-offerynnau Cymreig) is subordinate legislation made by the Welsh Ministers, as well as subordinate legislation made by public bodies using powers provided to be exercisable by Welsh statutory instrument. WSIs are the main form of subordinate legislation in Wales, being used by default to exercise powers delegated to the Welsh Ministers, the Counsel General, and the King-in-Council. [1]

The Legislation (Wales) Act 2019 defines what a Welsh statutory instrument is. [1] Until this Act, WSIs were governed by the Statutory Instruments Act 1946, which continues to govern UK statutory instruments. [2] [3] [4] [5] [6] [1]

Before Welsh devolution, subordinate legislation applying only to Wales was published as a subseries of the larger UK statutory instrument (SI) series. This subseries is now used for SIs which deal with reserved matters in relation to Wales. [7]

Purpose

An WSI is made, with some exceptions, by a body exercising executive governmental functions – that is, a body responsible for putting the law into effect ("executing" the law) rather than a body responsible for defining the law (the legislature) or a body responsible for interpreting the law (the judicature). As a result, an WSI will provide specific details on how an Act should be put into effect and may amend existing Acts or WSIs to reflect that the law has changed. [8] In other cases, an WSI may repeal parts of the law which had before been impliedly repealed.

For example, section 15 of the Environmental Protection (Single-use Plastic Products) (Wales) Act 2023 allows the Welsh Ministers to make regulations setting out implementation of the single-use plastic ban, and The Environmental Protection (Single-use Plastic Products) (Civil Sanctions) (Wales) Regulations 2023 sets out in regulation 1 how a fixed monetary penalties will be set. [9] [10]

In other cases, an WSI may be used to bring into force parts of the law through so-called "commencement orders." In these cases, sections of Acts may have no legal force until brought into force, which may allow time for accommodating preparations to be made. One example of a commencement order is The Tertiary Education and Research (Wales) Act 2022 (Commencement No. 1) Order 2022, which brought certain provisions of the Tertiary Education and Research (Wales) Act 2022 into force. [11]

Another example, although not involving WSIs, is the Health and Safety at Work etc. Act 1974, which applies to Wales and makes provisions relating to ensuring safety in the workplace. This Act covers a wide remit, and so UK SIs have been issued under the same sections to cover different industries. Specifically, some sections of this Act which allow making SIs were used to make both the Control of Substances Hazardous to Health Regulations 2002 and the Control of Vibration at Work Regulations 2005 even though those regulations are not related. [12] [13]

Procedure

Enabling

A WSI may only be made where an Act or Measure of the Senedd or Act of the UK Parliament gives that power. Such an Act is known variously as an enabling or parent Act, and sets out the scope of the power to make WSIs, and the associated procedure for exercising that power. An WSI may only make provision within the scope of its enabling power, and any provision outside that scope is invalid.

Making

An WSI is "made" when it is signed by a person or body who has the power to make that WSI – typically the Welsh Ministers. [14] This terminology appears to be inherited from the UK Parliament, as the Senedd has not provided official guidance specifically defining the term.

Laying

The "laying" of an WSI is the putting of that WSI before the Senedd for the Senedd's consideration. The phrase comes from laying before the house , which originally referred to the placing of a (physical) document on the table in the assembly chamber. All WSIs are required to be laid before Parliament in the manner specified by the Parliament's standing orders, although not laying an WSI before Parliament does not invalidate it. [15] The date an WSI is laid is also generally the date from which parliamentary scrutiny may begin. [1]

Scrutiny

Once a WSI is laid before the Senedd, it may be scrutinised. Scrutiny is generally performed by the Legislation, Justice and Constitution Committee (LJSC), which considers whether the Welsh Ministers are competent in making the WSI and whether the WSI of sufficient quality. [8] That is, the committee considers whether the Ministers have the power to make that WSI under the enabling Act, whether the Senedd has the power to make law in that area under the Government of Wales Act or Wales Acts, and whether the provisions of the WSI are clear, consistent, and free of typographical errors.

The LJSC and other committees report back to the Senedd, which applies a varying level of scrutiny depending on the exact procedure for that WSI. [8]

Negative procedure

A negative WSI is an WSI subject to negative procedure. Such WSIs must be laid before the Senedd at least 28 days before they come into force, and may be annulled by Senedd resolution within 40 days of their being laid. If an WSI is annulled after it comes into force, it ceases to have force from the date of annulment. [1]

Affirmative procedure

An affirmative WSI is subject to affirmative procedure. These WSIs must be approved by resolution of the Senedd before they can come into force. [1]

Special parliamentary procedure

Some WSIs are subject to special parliamentary procedure. These are so-called special procedure orders (SPOs), and differ from WSIs subject to other types of procedure in that notice of SPOs must be posted in the London Gazette (or a local newspaper, if the SPO relates to a particular area) and in that members of the public may object to an SPO.

If an SPO is objected to, it must be laid before the Parliament with its objections and then confirmed by an Act of the Scottish Parliament. If no objections are made, the Parliament may annul the order within 40 days of its being laid. If no objections are made and the Parliament does not annul the SPO, the SPO comes into force at the end of the 40-day period or at a later date if the SPO so specifies. [16]

Other procedures

Another example of these other procedures are laid-only procedure, where an WSI is laid before the Senedd but cannot be rejected. [8] : 6 

Commencement

An WSI will not typically have legal force immediately. Rather, it may require parliamentary approval, and may specify a "commencement day" on which it comes into force. For example, an order regulating student finance was made on 9 July 2024, laid before the Senedd on 19 July 2024, and has a commencement day of 9 July 2024. [17]

Types

Rules, regulations, and orders

While WSIs are separate from UK SIs, they generally appear to follow the same naming convention for rules, regulations, and orders. The Welsh Government and the Senedd have not, however, as of October 2016, published official guidance defining the terms, and so it cannot be known with certainty whether the definitions used for WSIs and SIs are identical.

These definitions were established by the so-called "Donoughmore Committee" of 1932, and recommended in official guidance published by Her Majesty's Stationery Office. The committee recommended that: [7] : [pp. 6–7] 

Orders in Council

An Order in Council is legislation made by the sovereign to exercise executive power, although in reality Orders are made by the Privy Council and approved by the sovereign. [18] [19] An Order in Council is primary legislation when made under the royal prerogative, and subordinate legislation if made under an Act of Senedd Cymru. When an Order in Council is used to exercise a power granted by an Act, such Orders are made as WSIs. [1]

Orders in Council are often used for making law which modifies how the branches of government work. [7] : 6  [18] Orders in Council have been used to adjust how the Senedd works – for example, to set who is disqualified from being a Member of the Senedd – and, in the UK SI series, to devolve powers to the Senedd. [20]

Orders of Council

An Order of Council is a form of legislation made by the Lords of the Privy Council (in practice, ministers of the Crown).

Orders of Council differ from Orders in Council in that, while Orders in Council are orders made by the King meeting with the Privy Council, Orders of Council are made by the Privy Council in its own right and without requiring the King's approval. The preamble of all Orders of Council states that the order was made at a meeting of the council held in Whitehall; however, in practice they are all approved through correspondence, and no meeting is actually held. [21]

Orders of Council that are Scottish Statutory Instruments generally relate to higher education, for example under the powers in the Education Reform Act 1988 to make provision for the constitution of governing bodies or regulate the granting of degrees. [22]

Style

Numbering

WSIs are numbered by the year they were made, and consecutively by the order they were received by the King's Printer in that year. Unlike with Acts of the Senedd, where Acts are numbered in exactly the order they are received, there is no such requirement for the numbering of WSIs – an WSI need only be ordered "as nearly as possible" in the order the Queen's Printer receives them. [23]

Citation

The recommended ways of citing an WSI are by its title – for example, The Education (Student Finance) (Miscellaneous Amendments) (Wales) Regulations 2024 – or by its year and number (e.g. W.S.I. 2024/810). [17] Some style guides recommend the use of both forms in a citation (as in The Agriculture (Wales) Act 2023 (Commencement No. 2) Order 2024, W.S.I. 2024/810 or another similar form). [24]

Divisions

The parts an WSI is divided into have different names depending on the type of WSI and official guidance has been published by the Welsh Government. [25]

The divisions shown in the table are for the main body matter of the WSI, and the Orders column includes Orders in Council. It is also common, regardless of the traditional name of the division, to refer to a division generally as a "clause," such as in "interpretation clause" (which would provide information on how the instrument is to be interpreted). In addition to these numbered (or lettered) paragraphs, an WSI can contain unnumbered paragraphs.

As with Acts of the Senedd, WSIs can have schedules annexed to them. Schedules to WSIs are divided in the same manner as Acts.

See also

Related Research Articles

The legislatures of the United Kingdom are derived from a number of different sources. The Parliament of the United Kingdom is the supreme legislative body for the United Kingdom and the British overseas territories with Scotland, Wales and Northern Ireland each having their own devolved legislatures. Each of the three major jurisdictions of the United Kingdom has its own laws and legal system.

<span class="mw-page-title-main">English law</span>

English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. The judiciary is independent, and legal principles like fairness, equality before the law, and the right to a fair trial are foundational to the system.

An Order in Council is a type of legislation in many countries, especially the Commonwealth realms. In the United Kingdom, this legislation is formally made in the name of the monarch by and with the advice and consent of the Privy Council (King-in-Council), but in other countries the terminology may vary. Orders-in-Council are distinct from Orders of Council, which are made in the name of the Council without sovereign approval.

<span class="mw-page-title-main">Statutory instrument (UK)</span> Type of secondary legislation in the United Kingdom

A statutory instrument (SI) is the principal form in which delegated legislation is made in Great Britain.

Delegated legislation or secondary legislation in the United Kingdom is law that is not enacted by a legislative assembly such as the UK Parliament, but made by a government minister, a delegated person or an authorised body under powers given to them by an Act of Parliament.

Citation of United Kingdom legislation includes the systems used for legislation passed by devolved parliaments and assemblies, for secondary legislation, and for prerogative instruments. It is relatively complex both due to the different sources of legislation in the United Kingdom, and because of the different histories of the constituent countries of the United Kingdom.

<span class="mw-page-title-main">Scottish statutory instrument</span> Type of law in Scotland

A Scottish statutory instrument is subordinate legislation made by the Scottish Ministers, as well as subordinate legislation made by public bodies using powers provided to be exercisable by Scottish statutory instrument. SSIs are the main form of subordinate legislation in Scotland, being used by default to exercise powers delegated to the Scottish Ministers, the Lord Advocate, the High Court of Justiciary, the Court of Session, and the King-in-Council.

<span class="mw-page-title-main">Senedd constituencies and electoral regions</span> Electoral constituencies and regions of the Senedd, the Welsh Parliament

The Senedd constituencies and electoral regions are the electoral districts used to elect members of the Senedd to the Senedd, and have been used in some form since the first election of the then National Assembly for Wales in 1999. New boundaries were introduced for the 2007 elections and currently consist of forty constituencies and five regions. The five electoral regions are: Mid and West Wales, North Wales, South Wales Central, South Wales East, and South Wales West, with the forty constituencies listed below. Voting last took place in all districts in the 2021 Senedd election, and is not used for local government.

<span class="mw-page-title-main">Welsh law</span> Primary and secondary legislation generated by the Senedd

Welsh law is an autonomous part of the English law system composed of legislation made by the Senedd. Wales is part of the legal jurisdiction of England and Wales, one of the three legal jurisdictions of the United Kingdom. However, due to devolution, the law in Wales is increasingly distinct from the law in England, since the Senedd, the devolved parliament of Wales, can legislate on non-reserved matters.

<span class="mw-page-title-main">Counsel General for Wales</span> Law officer of the Welsh Government

The Counsel General for Wales is the Welsh Government's Law Officer, which means the government's chief legal adviser and representative in the courts. In addition to these "lawyer" roles the Counsel General also works to uphold the rule of law and integrity of the legal community in Wales, and has a number of important specific statutory functions, some of which are to be exercised independently of government and in the public interest.

<span class="mw-page-title-main">Measure of the National Assembly for Wales</span> Form of primary legislation in Wales

A Measure of the National Assembly for Wales is primary legislation in Wales that is a category lower than an Act of Parliament. In the case of contemporary Welsh law, the difference with acts is that the competence to pass Measures was subject to 'LCOs' or Legislative Competence Order, which transferred powers to the Assembly by amending Schedule 5 of the Government of Wales Act 2006.

In many countries, a statutory instrument is a form of delegated legislation.

<span class="mw-page-title-main">Act of Senedd Cymru</span> Primary legislation enacted by the Senedd

An Act of Senedd Cymru, or informally an Act of the Senedd, is primary legislation that can be made by the Senedd under part 4 of the Government of Wales Act 2006. Prior to 6 May 2020 any legislation was formally known as an Act of the National Assembly for Wales or informally, an Act of the Assembly.

<span class="mw-page-title-main">Statutory Instruments Act 1946</span> Law of the United Kingdom

The Statutory Instruments Act 1946 is an Act of the United Kingdom Parliament which governs the making of statutory instruments.

<span class="mw-page-title-main">Welsh Tax Acts etc. (Power to Modify) Act 2022</span> Welsh legislation

The Welsh Tax Acts etc. Act 2022 is an Act of Senedd Cymru which allows Welsh ministers to amend tax law using regulatory powers. The Tax Acts in question are the Tax Collection and Management (Wales) Act 2016, the Land Transaction Tax and Anti-avoidance of Devolved Taxes (Wales) Act 2017, and the Landfill Disposals Tax (Wales) Act 2017.

<span class="mw-page-title-main">Legislation (Wales) Act 2019</span> United Kingdom legislation

The Legislation (Wales) Act 2019 is an Act of the National Assembly for Wales, which is designed to provide guidance on how to draft and interpret primary and secondary legislation of the Assembly.

References

  1. 1 2 3 4 5 6 7 Senedd Cymru – Welsh Parliament. Legislation (Wales) Act 2019 as amended (see also enacted form ), from legislation.gov.uk .
  2. ↑ HM Government (1946). Statutory Instruments Act 1946 (c. 36, 9-10 Geo. 6). National Archives. Archived from the original on 16 February 2016.
  3. ↑ "Government of Wales Act 1998", legislation.gov.uk , The National Archives, 1998 c. 38
  4. ↑ "Government of Wales Act 2006", legislation.gov.uk , The National Archives, 2006 c. 32
  5. ↑ "Wales Act 2014", legislation.gov.uk , The National Archives, 2014 c. 29
  6. ↑ "Wales Act 2017", legislation.gov.uk , The National Archives, 2017 c. 4
  7. 1 2 3 Her Majesty's Stationery Office (2006). Statutory Instrument Practice: A manual for those concerned with the preparation of statutory instruments and the parliamentary procedures related to them. Office of Public Sector Information.
  8. 1 2 3 4 "Subordinate Legislation". Senedd Cymru. Archived from the original on 19 May 2024. Retrieved 10 September 2024.
  9. ↑ Senedd Cymru – Welsh Parliament. The Environmental Protection (Single-use Plastic Products) (Wales) Act 2023 as amended (see also enacted form ), from legislation.gov.uk .
  10. ↑ Senedd Cymru – Welsh Parliament. The Environmental Protection (Single-use Plastic Products) (Civil Sanctions) (Wales) Regulations 2023 as made, from legislation.gov.uk .
  11. ↑ Senedd Cymru – Welsh Parliament. The Tertiary Education and Research (Wales) Act 2022 (Commencement No. 1) Order 2022 as made, from legislation.gov.uk .
  12. ↑ HM Government (2002). The Control of Substances Hazardous to Health Regulations 2002 (SI 2002/2677). National Archives. Introductory text. ISBN   0-11-042919-2. Archived from the original on 9 February 2016.
  13. ↑ HM Government (2005). The Control of Vibration at Work Regulations 2005 (SI 2005/1093). National Archives. Introductory text. ISBN   0-11-072767-3. Archived from the original on 25 September 2013.
  14. ↑ House of Commons Information Office (2008). Factsheet L7: Statutory Instruments (PDF). UK Parliament. p. 3. Archived from the original (PDF) on 4 March 2016.
  15. ↑ Standing Orders of the Welsh Parliament (PDF). Senedd Cymru. 2024. Archived (PDF) from the original on 26 September 2024.
  16. ↑ "Guidance to Assembly Members on the proper conduct of proceedings under Standing Order 25.19 to 25.24 (petitions and counter-petitions relating to Special Assembly Procedure Orders referred to a committee)" (PDF). Senedd Cymru. Archived (PDF) from the original on 14 September 2024. Retrieved 14 September 2024.
  17. 1 2 Senedd Cymru – Welsh Parliament. The Education (Student Finance) (Miscellaneous Amendments) (Wales) Regulations 2024 as made, from legislation.gov.uk .
  18. 1 2 "Orders in Council - Glossary page - UK Parliament". parliament.uk. Parliament of the United Kingdom. Archived from the original on 12 September 2016. Retrieved 21 October 2016.
  19. ↑ Her Majesty's Privy Council. "Orders | Privy Council". Her Majesty's Privy Council. Archived from the original on 6 April 2016. Retrieved 21 October 2016.
  20. ↑ "The Government of Wales Act 2006 (Amendment) Order 2021", legislation.gov.uk , The National Archives, SI 2021/290
  21. ↑ Privy Council webpage on its Order-making powers, retrieved 13 January 2012
  22. ↑ "Education Reform Act 1988", legislation.gov.uk , The National Archives, 1988 c. 40
  23. ↑ Senedd Cymru – Welsh Parliament. The Legislation (Wales) Act 2019 (Amendment of Schedule 1) Regulations 2020 as made, from legislation.gov.uk .
  24. ↑ "Secondary Legislation: Wales". Robert Gordon University. Archived from the original on 27 March 2016. Retrieved 10 September 2024.
  25. ↑ "Writing Laws for Wales: A guide to legislative drafting" (PDF). Welsh Government. Archived (PDF) from the original on 8 December 2023. Retrieved 26 September 2024.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.