Subordinate legislation (which is also referred to as delegated or secondary legislation) takes a variety of different forms. It includes orders, regulations, rules and schemes, and can include statutory guidance and local orders. Its name derives from the fact that it is subordinate to primary legislation (Acts of Parliament or Assembly Measures or Acts). Most subordinate legislation is made by statutory instrument (the most common form of subordinate legislation is a statutory instrument containing regulations or an order).
In passing an Act, Parliament or the National Assembly will have approved its principles, general objectives and important points of detail. However, the Act will usually also give Ministers (the Secretary of State or the Welsh Ministers depending on the subject matter), or some other body, powers to make detailed regulations or compel action relating to how the main law is implemented. Subordinate legislation often provides the finer detail necessary to flesh out the primary statements of law found in Acts. This can include, for example, specifying a process required by law (such as the process of applying for a licence) or defining with precision when a particular legal rule applies, and to whom it applies.
Powers to make subordinate legislation in subject areas devolved to Wales are conferred on the Welsh Ministers. In these circumstances it is common for there to be separate subordinate legislation for England and for Wales.
Welsh subordinate legislation subject to annulment
Much subordinate legislation is made by the Welsh Ministers subject to a motion being passed by the Assembly Members to overturn it (or to 'annul' it). This means that the legislation takes effect automatically unless the National Assembly resolves to annul it. Under this procedure (known as the 'negative procedure') subordinate legislation must be laid before the National Assembly at least 21 days before it comes into effect. If this rule is breached, the Minister making the legislation has to notify the Presiding Officer of the reasons for the breach.
Welsh subordinate legislation subject to approval
Some legislation requires prior approval (under a procedure known as the ‘affirmative procedure’) which means that it must be formally approved by the National Assembly before it takes effect.
Subordinate legislation subject to specific requirements
A small proportion of subordinate legislation can be made subject only to complying with specific requirements set out in the Act or Measure that contains the power to make it. These requirements are normally procedural such as a need to consult with specific persons before submitting the legislation to the National Assembly for approval (often referred to as a ‘super-affirmative’ procedure).
Statutory instruments made jointly with UK Ministers
Some subordinate legislation is made jointly by Welsh and UK Ministers and in such circumstances the statutory instrument must be laid before both the National Assembly and Parliament.
Other subordinate legislation
There is some subordinate legislation for which no formal procedure is prescribed other than that it has to be laid before the National Assembly.
A ‘Commencement Order’ is a form of subordinate legislation made by statutory instrument which brings into force the whole or part of an Assembly Act at a date set out in the Order (where there is no provision for an Act to come into force by Commencement Order, the Act will come into force on the day Royal Assent is received or on a date specified in the Act).