Introduction

  1. The purpose of this code is to set out the Welsh Ministers’ policy on carrying out regulatory impact assessments in relation to relevant subordinate legislation which they propose to make, using their own subordinate legislation powers [although the term “Welsh Ministers” is used in this code, it is, unless otherwise stated, taken to include the First Minister and the Counsel General in accordance with s.76 (2)(b) of GOWA 2006].
  2. Since the passing of the Government of Wales Act 2006 (GOWA 2006) the function of making subordinate legislation in Wales now lies with Welsh Ministers. A high volume of subordinate legislation is made by the Welsh Ministers in a wide range of areas and across ministerial portfolios.
  3. Details of subordinate legislation on the National for Wales Assembly for Wales website.
  4. Welsh Ministers are committed to considering the impact of subordinate legislation on business, the voluntary sector, local government and others; and on its statutory duties, explained below. However subordinate legislation varies greatly in nature and so the approach needs to be proportionate i.e. the length and the level of detail provided in an RIA will be proportionate to the proposed regulatory impact.
  5. This code was laid before the National Assembly for Wales on 20th October 2009.

1. The statutory position

1.1 This code is made under Section 76 of the GOWA 2006, which provides that Welsh Ministers must make a code of practice setting out how and in what circumstances they intend to carry out a regulatory impact assessment when making Welsh subordinate legislation (as defined).

2. Definitions

2.1 For the purposes of this code, the following definitions are applied:

Regulatory impact assessment (RIA)

  • “an assessment as to the likely costs and benefits of complying with relevant Welsh subordinate legislation” (Section 76 (2)(a) of the Government of Wales Act 2006)
    In this respect, an RIA can be regarded as:
    • a process to help the Welsh Ministers consider the impact of proposed regulation on the interests of individuals, groups, organisations, etc.
    • a tool to enable Welsh Ministers to weigh the costs and benefits of all options available to them before implementing a policy, and
    • a means of presenting for scrutiny the relevant evidence on the positive and negative effects of such interventions.

Relevant Welsh subordinate legislation

  • Section 76 (2)(b) of GOWA 2006 provides the following definition in respect of “relevant Welsh subordinate legislation”:
    • “subordinate legislation is relevant Welsh subordinate legislation if it is made by Welsh Ministers, the First Minister or the Counsel General and the statutory instrument (or a draft of the statutory instrument) containing it is required to be laid before the Assembly”

2.2 Subordinate legislation is usually concerned with detailed changes to the law made in most cases under powers from an Act of Parliament or an Assembly Measure [A new category of Welsh legislation, which may be used, for example, to repeal or amend existing acts and/or make entirely new provision. Measures can only be enacted where the Assembly has legislative competence and therefore must relate to one or more of the matters listed in the fields set out in Part 1 of Schedule 5 to the Government of Wales Act 2006.]. However, in accordance with the definition under section 76(2)(b) of GOWA 2006, the provisions in this code specifically relate to the preparation of statutory instruments (SIs) which are to be laid before the Assembly.

2.3 The changes that can be made by subordinate legislation range from the technical, like uprating figures in line with inflation; to filling in the greater detail under an act or measure (an act or measure may define its general purpose and set the legal framework with the detail being left to the content of the subordinate legislation).

3. Requirement of the standing orders

3.1 The Standing Orders of the National Assembly for Wales are the rules which govern Assembly proceedings (e.g. plenary sessions and committee meetings etc.). They make specific provision in relation to regulatory impact assessments for subordinate legislation. Standing Order 24.1 states that:

“Any statutory instrument or draft statutory instrument laid before the Assembly which is not subject to a parliamentary procedure must be accompanied by an explanatory memorandum, which must include any regulatory impact assessment prepared in relation to the instrument”.

4. Policy for carrying out an RIA

4.1 Except in the cases outlined below, an assessment of the impact of any proposed subordinate legislation must be considered when the options for the development of the policy are being considered. This is consistent with the Welsh Assembly Government’s current policy of consulting and involving others (including business, local government and the voluntary sectors) in the development of policies at the very earliest opportunity. The tests applied in an RIA are part of an ongoing process which begins with an assessment of whether legislation is actually necessary to implement new policies. This is done as part of a wider policy development approach called the Policy Gateway. Following the Policy Gateway process, summary documents will be published online.

4.2 Welsh Ministers’ policy will be to carry out an RIA - to be included as part of the explanatory memorandum that is laid alongside all statutory instruments and draft statutory instruments made/to be made by the Welsh Ministers and which are laid by them before the Assembly - subject to the following exceptions:

  • Where the subordinate legislation does not meet the section 76 criteria, i.e. that it is not made by statutory instrument or required to be laid before the Assembly
  • Where the subordinate legislation simply increases a statutory fee by a predetermined formula (for example, the rate of inflation)
  • Where routine technical amendments or factual amendments are required to update regulations, etc. that have no major policy impact
  • For Commencement Orders bringing into force primary legislation or Assembly Measures, including such Orders also making consequential provision or savings, etc.
  • Where the relevant Welsh subordinate legislation is subject to an additional UK Parliament procedure. In those instances, a joint view with the relevant UK government department should be taken as to whether a regulatory impact assessment is required.   
  • Where the relevant Welsh subordinate legislation needs to be put in place quickly to deal with an emergency (e.g. foot-and-mouth or avian flu)
  • Where relevant Welsh subordinate legislation is made in the exercise of statutory powers granted by an act or measure which do not in any way give the Welsh Ministers discretion as to how those powers should be exercised.

4.3 There can be some subordinate legislation which is not made by SI and/or not required to be laid before the Assembly but which Ministers may consider has significant impact and therefore requires an assessment of its impact. All such subordinate legislation will be assessed on a case-by-case basis and having done this, Welsh Ministers may choose to voluntarily carry out an RIA regardless of whether the legislation falls within any of the outlined exceptions.

4.4 Where more than one SI is being amended concurrently to meet one policy objective, and the changes are interdependent, only one RIA needs to be carried out.

5. Consultation in connection with RIAs for subordinate legislation

Welsh Ministers’ statutory schemes

5.1 As part of the regulatory process and in compiling any RIA, Welsh Ministers will carry out the proper and appropriate consultation with those who are likely to be affected, and those who have an interest in the overall impact of the legislation. Such consultation will be consistent with the provisions of the statutory partnership schemes provided for in GOWA 2006:

Welsh Ministers’ statutory functions

5.2 In compiling any RIA, Welsh Ministers will have due regard to those statutory functions set out below (as provided for in the GOWA 2006). These are:

  • Section 77 – Equality of opportunity (where the Welsh Ministers must ensure that they are exercising their functions with due regard to the principle that there should be equality of opportunity for all people)
  • Section 78 – The Welsh language (where the Welsh Ministers must adopt a scheme and a strategy which set out how the Welsh language will be promoted; how it will be used in connection with the provision of public services; and, that in the conduct of public business in Wales the English and Welsh languages will be treated on a basis of equality), and
  • Section 79 – Sustainable development (where Welsh Ministers must set out in a scheme how they are going to ensure, in exercising their functions that they are promoting sustainable development).

5.3 It is the policy of the Welsh Assembly Government to normally consult for a minimum of 12 weeks on new/major policy proposals and also to make all consultations available online.

5.4 Current Welsh Assembly Government consultations on GOV.WALES.

6. Revision and remaking

6.1 Welsh Ministers must keep the RIA Code under review (section 76(3)(a) of GOWA 2006).

6.2 If Welsh Ministers decide that they want to revise or remake the Code from time to time then they must:

  • consult such persons as they consider appropriate
  • publish the code when they remake it
  • publish any revisions (either the revisions themselves or the revised code in its entirety), and
  • If the code is remade or revised, then lay a copy before the Assembly.

7. Consultation on the code

7.1 Having particular regard to the principles set out in the local government scheme, the business scheme and the voluntary sector scheme, the Welsh Ministers consulted fully the relevant individuals/organisations on the content of this code from 21 July to 21 October 2008.

7.2 Those consulted were asked to consider the content of the code and to give their views on its proposed scope, particularly in relation to their specific field of expertise or the sector within which they work