Commentary on Provisions The schedule Paragraph 18 – Existing powers to make secondary legislation
194.There are a number of existing powers to make secondary legislation in the 2005 Act.
195.Sub-paragraph (2) of this paragraph of the Act’s schedule ensures that the existing power to make regulations about SCIOs under section 64 of the 2005 Act can be exercised by textually amending the 2005 Act itself. This will allow signposting to regulations, similar to inserted section 45A(6) (inserted by section 12 of the Act), to be added at other places in the 2005 Act where it might otherwise appear from the face of the 2005 Act that a rule applies to all charities when in fact, because of their unique nature, rules are sometimes applied with slight modifications for SCIOs. Sub-paragraph (3)(c) provides that where the power is exercised in a way that textually amends the 2005 Act, it will be subject to the affirmative procedure.
196.Sub-paragraphs (3) and (4)(a) of this paragraph of the Act’s schedule extend slightly the existing ability to make ancillary provision which is found in section 102 of the 2005 Act. It is extended to ensure that the power can be exercised not just for the purposes of or in consequence of this Act, but also any orders or regulations made under it. Clarification is also added that the power to modify any enactment includes the 2005 Act itself.
197.Sub-paragraph (4)(b) of this paragraph of the Act’s schedule tidies up the existing provision that is made in the 2005 Act about whether regulations and orders are subject to the affirmative or the negative procedure. It does not make any change to the split of powers and procedure which is provided for in the 2005 Act. It simply avoids the need to restate the list of powers each time when saying that those powers that are not subject to the affirmative procedure are instead subject to the negative procedure (other than commencement orders which continue, as standard, to be subject only to a laying requirement).