Commentary on Sections Part 2: Disabled people: Right to control provision of services Section 45: The appropriate authority by which regulations under section 41 are made
217.This section defines the appropriate authority which is to have power to make regulations under section 41. The Secretary of State will be the appropriate authority except in cases where the provisions to be made would be within the legislative competence of either the Scottish Parliament or the National Assembly for Wales. If the provision would be within the devolved competence of either of those bodies, powers are conferred on the Scottish Ministers and the Welsh Ministers respectively. Paragraph (c) of section 45(2) enables the regulation-making power in section 41 to be exercised by the Secretary of State or the Welsh Ministers where both have functions in relation to a relevant service in Wales. Paragraph (d) enables that power to be exercised by the Welsh Ministers in relation to other relevant services with respect to which functions are exercisable by the Welsh Minister, the First Minister for Wales or the Counsel General to the Welsh Assembly Government. Subsections (3) and (4) prevent the Secretary of State or the Welsh Ministers from modifying each other’s functions when making regulations under section 41. Regulations made by the Secretary of State will require the consent of the Treasury.