Commentary on Sections Part 4 – General Section 7 – Minor amendments to the Legislation (Wales) Act 2019Schedule 2 – Minor amendments to the Legislation (Wales) Act 2019
221.Schedule 2 – which is introduced by section 7 – contains minor amendments to Part 2 of the 2019 Act.
222.Part 2 of the 2019 Act makes provision about the interpretation and operation of legislation made by the Senedd or under powers it has conferred, and other subordinate legislation made by the Welsh Ministers and other devolved Welsh authorities.
223.Paragraph 2 of this Schedule amends section 3 of the 2019 Act. Section 3 sets out the legislation to which Part 2 of the 2019 Act applies: namely, to the Act itself and to Senedd Acts that are enacted and Welsh subordinate instruments that are made after 1 January 2020. The amendments made to section 3 make clear that Part 2 applies to the subordinate legislation contained within a Welsh subordinate instrument (reflecting the approach taken in new Parts 2A and 2B of the 2019 Act).
224.Paragraph 3 of this Schedule inserts a new section 12A (Meaning of references to laying documents before Senedd Cymru) into Part 2 of the 2019 Act. The first step in parliamentary control is the requirement that a document be laid before a parliament (in Wales, this means laying before Senedd Cymru). What constitutes laying must be a matter for the decision of the Senedd and the Senedd’s rules and procedures are laid out in its Standing Orders. As such new section 12A makes clear that where an Act of the Senedd or Welsh subordinate instrument requires a document to be laid before the Senedd, then that means taking the actions specified in the Senedd’s Standing Orders in relation to laying (see for example, Standing Order 15).
225.Section 16 of the 2019 Act provides that powers and duties under provisions of Acts of the Senedd and Welsh subordinate instruments may in certain circumstances be exercised before those provisions come into force. Paragraph 4 of this Schedule to the Act amends section 16 in two respects:
226.Paragraphs 5 to 7 of this Schedule to the Act bring “Church Measures” within the meaning of “enactment” for the purposes of sections 21, 25 and 32 to 35 of the 2019 Act. Church Measures (or more fully, Measures of the Church Assembly or of the General Synod of the Church of England) are legislation relating to the administration and organisation of the Church. They have the same effect as an Act of Parliament and may also confer powers to make subordinate legislation (see the Church of England Assembly (Powers) Act 1919 (c. 76)). The Church in Wales cannot make legislation of this kind, but Church Measures are sometimes relevant to part of Wales, in particular because there are 18 Church of England parishes partly in Wales. It may therefore be necessary for Acts of the Senedd or Welsh subordinate instruments to refer to Church Measures or amend them. The amendments to the 2019 Act in paragraphs 5 to 7 ensure that references and amendments to Church Measures have the same effect as references and amendments to other enactments.
227.Paragraph 8 of this Schedule amends section 35 of the 2019 Act. Section 35(3) provides that subordinate legislation made under provisions that have been repealed and re-enacted (for example in a consolidation of law) is to have effect as if made under the re-enacted provisions. Section 28 creates the default position that subordinate legislation made under an Act of Senedd Cymru binds the Crown so far as the Act enables it to do so, which is different from the default position for subordinate legislation to which Part 2 of the 2019 Act does not apply. The amendment in paragraph 6 is aimed at the situation where subordinate legislation to which section 28 did not originally apply now has effect under section 35(3) as if it had been made under an Act of the Senedd. It clarifies that section 35(3) does not cause section 28 to apply to subordinate legislation to which it did not previously apply (which could change whether the subordinate legislation binds the Crown).
228.Finally, paragraph 9 of this Schedule amends section 36 of the 2019 Act. Section 36 has the effect of preserving the validity of references to an Act by its short title even after the Act has been repealed. New subsection (2) makes equivalent provision preserving the validity of references to Welsh subordinate instruments by their titles even when those instruments have been revoked.