Commentary on Sections Part 1 – Procedure for Making Welsh Subordinate Legislation 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:
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).