Commentary Supplementary Section 37: Subordinate legislation
143.Section 37 makes further provision for the making of subordinate legislation under this Part. Subsection (1) provides that the orders and regulations under Part 1 of the Act must be made by statutory instrument, and subsection (2) provides that such instruments may include incidental, supplementary and consequential provision; make transitional or transitory provision or savings; and make different provision for different cases or circumstances. Subsections (3) to (6) establish the parliamentary procedures to which orders and regulations made under Part 1 are subject. Statutory instruments containing an order or regulations to which subsection (4) applies are subject to the affirmative resolution procedure. These are the orders or regulations made under section 2, 8, 16(8), 23, or 35 and any order containing provision amending or repealing primary legislation by virtue of section 36(2). Statutory instruments containing regulations under section 29, or an order under section 36 that does not amend or repeal primary legislation, are subject to the negative resolution procedure. An order under section 33 (power to require payment into the consolidated fund) is subject to annulment by the House of Commons. Subsection (7) defines primary legislation for the purpose of section 37, while subsection (8) makes it clear that that section does not apply to an order made under section 31 of the Act (assignment of functions to the Director of Revenue and Customs Prosecutions by the Attorney General). Those orders are not made by statutory instrument and follow no Parliamentary procedure. This is consistent with other similar order-making powers of the Attorney General such as those found in section 35 of the CRCA 2005 relating to Revenue and Customs Prosecutions and section 3(2)(g) of the Prosecution of Offences Act 1985 in relation to the assignment of functions to the Director of Public Prosecutions.