12.Section 37A contains the definition of a “Welsh statutory instrument”. It is a document that contains “Welsh subordinate legislation”. The term “subordinate legislation” by itself is defined in Schedule 1 to the 2019 Act and means things such as orders, regulations and rules. However, for such things to fall within the meaning of the term “Welsh subordinate legislation” the legislation must be made by the Welsh Ministers or a devolved Welsh authority. This requirement means that if the Welsh Ministers are acting with another person who is not a devolved Welsh authority to make the subordinate legislation (for example, a Secretary of State) then the resulting instrument will continue to be made as a statutory instrument. Similarly, an Order in Council made solely in relation to Wales would continue to be made as a statutory instrument.
13.The Government of Wales Act 2006 (c. 32) (‘the 2006 Act’) provides the meaning of the “Welsh Ministers” (see section 48). However, for the purposes of defining a “Welsh statutory instrument” the term “Welsh Ministers” includes the National Assembly for Wales established under the Government of Wales Act 1998 (c. 38) (see section 37A(4)). Under the 1998 Act that National Assembly had a range of powers to make subordinate legislation, most of which were then transferred to the Welsh Ministers by the 2006 Act. The inclusion of instruments containing subordinate legislation made by that National Assembly in the definition of “Welsh statutory instrument” is relevant to some of the provisions about Welsh statutory instruments in the new Part 2B of the 2019 Act, but not to the procedural provisions in Part 2A.
14.The 2006 Act also defines “devolved Welsh authority” (see section 157A). A devolved Welsh authority includes bodies such as the Welsh Language Tribunal.
15.One of the effects of section 37A is that all existing statutory instruments that have been made by the Welsh Ministers or a devolved Welsh authority, where they have not made the legislation with another person, will become Welsh statutory instruments. Although in practice this changes very little, it places on a statutory footing the classification that the King’s Printer of Acts of Parliament had been using to identify statutory instruments made by the Welsh Ministers (and previously the National Assembly for Wales) since 1999.
16.Another effect is that the Statutory Instruments Act 1946 (c. 36) (‘the 1946 Act’) will no longer apply to the existing instruments that fall within the definition of “Welsh statutory instrument” (or indeed future Welsh statutory instruments), but instead new Part 2B in the 2019 Act will apply. Paragraph 1 of Schedule 3 to the Act disapplies the 1946 Act to instruments made by the Welsh Ministers.
17.Existing requirements for the Welsh Ministers and devolved Welsh authorities to make particular pieces of subordinate legislation as a statutory instrument are ‘converted’ to requirements to make that legislation as a Welsh statutory instrument. This is the effect of section 37H and Schedule 1A (see below).
18.Instead of providing that a particular piece of subordinate legislation is to be made as a “statutory instrument” (and attract the requirements of the 1946 Act), future Acts of the Senedd will provide that particular piece of subordinate legislation is to be made as a “Welsh statutory instrument”. This will then attract the relevant aspects of Part 2B as to the numbering, publication and preservation of such instruments. If a future Act of the UK Parliament confers powers on the Welsh Ministers or another devolved Welsh authority to make subordinate legislation (to be exercised acting alone rather than, say, jointly with a Secretary of State), those Acts should also provide it will be made as a “Welsh statutory instrument”.
Commentary on Sections Part 1 – Procedure for Making Welsh Subordinate Legislation Section 37A – Welsh statutory instruments