Commentary on Sections Part 1 – Procedure for Making Welsh Subordinate Legislation Section 37D – Senedd confirmation procedure
27.Section 37D defines what is meant when an enactment provides that subordinate legislation that is to be made as a Welsh statutory instrument is subject to the “Senedd confirmation procedure”.
28.This procedure is the equivalent of the so-called ‘made affirmative’ procedure found in certain existing legislation. Parliaments (including Senedd Cymru) have enacted legislation which permits subordinate legislation to be made under this procedure where there is an expectation that the maker of the subordinate legislation would need to take urgent action, but such action needs to be confirmed by the legislature for those arrangements to become permanent. For example, in relation to a health protection emergency such as the recent coronavirus pandemic or to swiftly make changes to tax thresholds or exemptions.
29.Subordinate legislation made subject to the Senedd confirmation procedure is made by the person who has the power to make the legislation and the Welsh statutory instrument is then laid before the Senedd, as soon as possible after the subordinate legislation is made. The subordinate legislation cannot continue to have effect or come into force at a future point, unless the Senedd subsequently confirms it through a resolution.
30.Enactments that prescribe that a particular piece of subordinate legislation is to be made by the Senedd confirmation procedure will usually also prescribe the point in time by which confirmation of the Senedd must be given. Alternatively, the enactment may specify a particular event by which confirmation of the Senedd must be given. For example, the enactment may prescribe that confirmation of the Senedd must be given within 28 days of the subordinate legislation being made, not counting any time when the Senedd is in recess or dissolved. Or, by way of further example, the enactment could prescribe that the Senedd must give its confirmation before a budget resolution is passed.
31.Subordinate legislation made under the Senedd confirmation procedure therefore ceases to have effect if the Senedd does not confirm it because it does not agree that the subordinate legislation should continue (the resolution is not passed) or the passage of time for which it can remain in force expires or the situation relating to the prescribed event occurs (meaning the Senedd cannot be asked to confirm it).
32.Subsection (4) provides that where the subordinate legislation ceases to have effect, if it is not already in force it will not come into force (and if it is partly in force it will not fully come into force). Where the subordinate legislation was already in force or partly in force at the point it ceased to have effect, nothing further can be done or relied upon under it. The responsible authority must, by an order made under section 37D(4)(c) then revoke it. Revocation will help to avoid confusion for future readers of the legislation who may not otherwise realise the subordinate legislation no longer has effect. The order that revokes the subordinate legislation must laid before the Senedd in accordance with section 37F and be made by Welsh statutory instrument.
33.Where subordinate legislation ceases to have effect, anything that was done under it remains valid and further subordinate legislation can still be made (see subsection (5)).
34.New section 12A of the 2019 Act explains what is meant by laying a document before Senedd Cymru (see also paragraph 215 below).
35.For the application of this procedure to new subordinate legislation made by a responsible authority under enactments that were made or enacted before Part 2A comes into effect, see section 37H and Schedule 1A. For such subordinate legislation made by the Welsh Minsters acting with another person (not a devolved Welsh authority) see Schedule 1B.