Commentary on Sections Supplementary Section 40: Orders, regulations and guidance
154.Section 40 provides that all subordinate legislation made under the Act is to be made by statutory instrument. Any statutory instruments made by the Secretary of State under section 1(6) or (7) (social work practices) or section 11(independent reviewing officers) are subject to the affirmative resolution procedure (subsection (2)). All other statutory instruments made by the Secretary of State will be subject to the negative resolution procedure (subsection (3)), except for commencement orders made under section 44 which will not be subject to any parliamentary procedure. (See paragraph 18 for an explanation of the affirmative resolution procedure and the negative resolution procedure.)
155.Subsection (4) of section 40 mirrors subsection (2), and makes the exercise by the Welsh Ministers of their power to make regulations under section 1(6) or 1(7) subject to approval by a resolution of the National Assembly for Wales, the equivalent in relation to Wales of the affirmative resolution procedure.
156.Subsection (5)(a) provides for the exercise by Welsh Ministers of their power under section 12 to create a new body to carry out functions in relation to Independent Reviewing Officers, or to confer those functions on themselves, to be made subject to approval by a resolution of the National Assembly for Wales (affirmative resolution procedure). Subsection (5)(b) provides for additional scrutiny by Parliament of the exercise of the power under section 12, following the passing of the resolution required by subsection (5)(a). The additional Parliamentary scrutiny is considered necessary because the power conferred on the Welsh Ministers by section 12 extends beyond the current legislative competence of the National Assembly for Wales under the Government of Wales Act 2006.
157.Subsections (6) and (7) make provision for the procedure to be followed by the First Minister (appointed under section 46 of the Government of Wales Act 2006) and by the Secretary of State, following the passing of the resolution required by subsection (5)(a).
158.Subsection (8) removes the requirement in subsection (5)(b) for additional Parliamentary scrutiny following the passing of the resolution required by subsection (5)(a), in the event that an order is made under section 105 of the Government of Wales Act 2006 bringing the Assembly Act provisions into force. The effect of making such an order would be to substantially extend the legislative competence of the National Assembly for Wales, bringing the power conferred on the Welsh Ministers by section 12 within the Assembly’s legislative competence, with the result that the requirement for additional Parliamentary scrutiny of the exercise of the power in subsection (5)(b) would become inconsistent with the new stage of devolution, and therefore no longer be necessary.
159.A commencement order made by Welsh Ministers under section 44 is not to be subject to scrutiny by the National Assembly for Wales (subsection (11)). Any subordinate legislation made by the Welsh Ministers – other than subordinate legislation made under sections 1(6) or (7), 12 or  44 – will be capable of being annulled by a resolution of the National Assembly for Wales.