A Welsh statutory instrument (WSI; Welsh: offerynnau statudol Cymru) is subordinate legislation made by the Welsh Ministers, as well as subordinate legislation made by public bodies using powers provided to be exercisable by Welsh statutory instrument. WSIs are the main form of subordinate legislation in Wales, being used by default to exercise powers delegated to the Welsh Ministers, the Counsel General, and the King-in-Council.[1]
Before Welsh devolution, subordinate legislation applying only to Wales was published as a subseries of the larger UK statutory instrument (SI) series. This subseries is now used for SIs which deal with reserved matters in relation to Wales.[7]
Purpose
An WSI is made, with some exceptions, by a body exercising executive governmental functions – that is, a body responsible for putting the law into effect ("executing" the law) rather than a body responsible for defining the law (the legislature) or a body responsible for interpreting the law (the judicature). As a result, an WSI will provide specific details on how an Act should be put into effect and may amend existing Acts or WSIs to reflect that the law has changed.[8] In other cases, an WSI may repeal parts of the law which had before been impliedly repealed.
In other cases, an WSI may be used to bring into force parts of the law through so-called "commencement orders." In these cases, sections of Acts may have no legal force until brought into force, which may allow time for accommodating preparations to be made. One example of a commencement order is The Tertiary Education and Research (Wales) Act 2022 (Commencement No. 1) Order 2022, which brought certain provisions of the Tertiary Education and Research (Wales) Act 2022 into force.[11]
A WSI may only be made where an Act or Measure of the Senedd or Act of the UK Parliament gives that power. Such an Act is known variously as an enabling or parent Act, and sets out the scope of the power to make WSIs, and the associated procedure for exercising that power. An WSI may only make provision within the scope of its enabling power, and any provision outside that scope is invalid.
Making
An WSI is "made" when it is signed by a person or body who has the power to make that WSI – typically the Welsh Ministers.[14] This terminology appears to be inherited from the UK Parliament, as the Senedd has not provided official guidance specifically defining the term.
Laying
The "laying" of an WSI is the putting of that WSI before the Senedd for the Senedd's consideration. The phrase comes from laying before the house, which originally referred to the placing of a (physical) document on the table in the assembly chamber. All WSIs are required to be laid before Senedd in the manner specified by the Senedd's standing orders, although not laying an WSI before Senedd does not invalidate it.[15] The date an WSI is laid is also generally the date from which parliamentary scrutiny may begin.[1]
Scrutiny
Once a WSI is laid before the Senedd, it may be scrutinised. Scrutiny is generally performed by the Legislation, Justice and Constitution Committee (LJSC), which considers whether the Welsh Ministers are competent in making the WSI and whether the WSI of sufficient quality.[8] That is, the committee considers whether the Ministers have the power to make that WSI under the enabling Act, whether the Senedd has the power to make law in that area under the Government of Wales Act or Wales Acts, and whether the provisions of the WSI are clear, consistent, and free of typographical errors.
The LJSC and other committees report back to the Senedd, which applies a varying level of scrutiny depending on the exact procedure for that WSI.[8]
Negative procedure
A negative WSI is an WSI subject to negative procedure. Such WSIs must be laid before the Senedd at least 28 days before they come into force, and may be annulled by Senedd resolution within 40 days of their being laid. If an WSI is annulled after it comes into force, it ceases to have force from the date of annulment.[1]
Affirmative procedure
An affirmative WSI is subject to affirmative procedure. These WSIs must be approved by resolution of the Senedd before they can come into force.[1]
Special parliamentary procedure
Some WSIs are subject to special parliamentary procedure. These are so-called special procedure orders (SPOs), and differ from WSIs subject to other types of procedure in that notice of SPOs must be posted in the London Gazette (or a local newspaper, if the SPO relates to a particular area) and in that members of the public may object to an SPO.
If an SPO is objected to, it must be laid before the Senedd with its objections and then confirmed by an Act of Senedd Cymru. If no objections are made, the Senedd may annul the order within 40 days of its being laid. If no objections are made and the Parliament does not annul the SPO, the SPO comes into force at the end of the 40-day period or at a later date if the SPO so specifies.[16]
Other procedures
Another example of these other procedures are laid-only procedure, where an WSI is laid before the Senedd but cannot be rejected.[8]: 6
An WSI will not typically have legal force immediately. Rather, it may require parliamentary approval, and may specify a "commencement day" on which it comes into force. For example, an order regulating student finance was made on 9 July 2024, laid before the Senedd on 19 July 2024, and has a commencement day of 9 July 2024.[17]
Types
Rules, regulations, and orders
While WSIs are separate from UK SIs, they generally appear to follow the same naming convention for rules, regulations, and orders. The Welsh Government and the Senedd have not, however, as of October 2016, published official guidance defining the terms, and so it cannot be known with certainty whether the definitions used for WSIs and SIs are identical.
These definitions were established by the so-called "Donoughmore Committee" of 1932, and recommended in official guidance published by Her Majesty's Stationery Office. The committee recommended that:[7]: [pp. 6–7]
Rules should set out procedure – how specific public bodies conduct themselves.
Regulations should set out substantive law – how members of the public, companies, and so on conduct themselves.
Orders should exercise executive power, or the power to take judicial decisions.
An Order in Council is legislation made by the sovereign to exercise executive power, although in reality Orders are made by the Privy Council and approved by the sovereign.[18][19] An Order in Council is primary legislation when made under the royal prerogative, and subordinate legislation if made under an Act of Senedd Cymru. When an Order in Council is used to exercise a power granted by an Act, such Orders are made as WSIs.[1]
Orders in Council are often used for making law which modifies how the branches of government work.[7]: 6 [18] Orders in Council have been used to adjust how the Senedd works – for example, to set who is disqualified from being a Member of the Senedd – and, in the UK SI series, to devolve powers to the Senedd.[20]
Orders of Council differ from Orders in Council in that, while orders in Council are orders made by the King meeting with the Privy Council, Orders of Council are made by the Privy Council in its own right and without requiring the King's approval. The preamble of all Orders of Council states that the order was made at a meeting of the council held in Whitehall; however, in practice they are all approved through correspondence, and no meeting is actually held.[21]
Orders of Council that are Welsh statutory instruments generally relate to higher education, for example under the powers in the Education Reform Act 1988 to make provision for the constitution of governing bodies or regulate the granting of degrees.[22]
Style
Numbering
WSIs are numbered by the year they were made, and consecutively by the order they were received by the King's Printer in that year. Unlike with Acts of the Senedd, where Acts are numbered in exactly the order they are received, there is no such requirement for the numbering of WSIs – an WSI need only be ordered "as nearly as possible" in the order the Queen's Printer receives them.[23]
Citation
The recommended ways of citing an WSI are by its title – for example, The Education (Student Finance) (Miscellaneous Amendments) (Wales) Regulations 2024 – or by its year and number (e.g. W.S.I. 2024/810).[17] Some style guides recommend the use of both forms in a citation (as in The Agriculture (Wales) Act 2023 (Commencement No. 2) Order 2024, W.S.I. 2024/810 or another similar form).[24]
Divisions
The parts an WSI is divided into have different names depending on the type of WSI and official guidance has been published by the Welsh Government.[25]
The divisions shown in the table are for the main body matter of the WSI, and the Orders column includes Orders in Council. It is also common, regardless of the traditional name of the division, to refer to a division generally as a "clause," such as in "interpretation clause" (which would provide information on how the instrument is to be interpreted). In addition to these numbered (or lettered) paragraphs, an WSI can contain unnumbered paragraphs.
As with Acts of the Senedd, WSIs can have schedules annexed to them. Schedules to WSIs are divided in the same manner as Acts.
^ abcHer Majesty's Stationery Office (2006). Statutory Instrument Practice: A manual for those concerned with the preparation of statutory instruments and the parliamentary procedures related to them. Office of Public Sector Information.
^Her Majesty's Privy Council. "Orders | Privy Council". Her Majesty's Privy Council. Archived from the original on 6 April 2016. Retrieved 21 October 2016.
