Commencement powers grant Ministers the power to determine when legislation takes effect. Earlier this month, the Government published new regulations postponing implementation of the Sentencing Act 2026 reforms to automatic prisoner release. The previous commencement regulations would have brought the main release provisions into force from 2 September. The new regulations, made on 1 September, revoked that instrument and delay implementation until 1 October, with phased release of existing prisoners continuing over several months.

But these new regulations – the Sentencing Act 2026 (Commencement No. 6 and Revocation) Regulations 2026 – go further than simply changing the date on which the provisions of the 2026 Act come into force. The commencement regulations have also been used to give effect to the Government’s policy to exclude prisoners found guilty of certain offences from the early release scheme.

The new early release scheme is set out in section 23 of the Sentencing Act 2026 and applies largely irrespective of the offence committed. So how can commencement regulations carve out the exceptions the Government now wants?

The commencement regulations create a list of excluded offences by providing that the relevant provisions of the Act will not come into force in relation to them. For those offences, the release provisions approved by Parliament will remain uncommenced unless and until Ministers make a further commencement instrument.

This approach relies on section 49(2) of the Sentencing Act, which provides that, when Ministers exercise their power to bring the Act into force, “different days may be appointed for different purposes or areas”. There are often sound, practical reasons to bring the same provision into force at different times for different purposes. But this power should not be used to alter indefinitely the policy choices enacted by Parliament.

As explained in our earlier post, using commencement powers in this way blurs the boundary between bringing legislation into force and making substantive law. But if the Government wanted to exclude particular offences from the scope of its early prisoner release plans, what alternative did it have?

There is already a legislative vehicle for distinguishing between prisoners for the purpose of early release. Section 267 of the Criminal Justice Act 2003 allows the Secretary of State, through secondary (or delegated) legislation, to alter the proportion of a sentence that prisoners must serve before release. In 2024, the Government used this power to introduce the original early release scheme: it reduced the automatic release point from 50% to 40% while at the same time excluding certain more serious offences.

The crucial difference with commencement orders is the degree of parliamentary scrutiny involved. An order under section 267 is subject to the affirmative procedure: it must be laid in draft, debated and approved by both Houses of Parliament before it can become law. Commencement regulations are subject to no parliamentary procedure at all. By using commencement regulations, the Government has therefore substantially reduced the opportunity for parliamentary scrutiny.

Another option would have been to use primary legislation. Unlike in 2024, the reduction in the automatic release point from 40% to one-third was not made under section 267 of the Criminal Justice Act 2003. Instead, the Government legislated for it directly through the Sentencing Act 2026. In doing so, Parliament also chose not to reproduce the offence-based exclusions contained in the 2024 scheme. This was a deliberate policy choice: amendments seeking to introduce such exclusions were considered and rejected.

Parliament enacted the Sentencing Act only a few months ago on the express basis that the new early release provisions would apply to the offences now being excluded. It therefore seems reasonable that any permanent departure from that decision should also require primary legislation. At the very least, the secondary legislation giving effect to that departure should be subject to parliamentary scrutiny.

The decision to exclude certain prisoners was apparently made only after the Act had been passed, prompting the Government to put the exclusions in commencement regulations. That approach might be defensible if the commencement regulations are merely a stopgap, delaying commencement while the Government seeks Parliament’s approval for the exclusions through fresh primary legislation or secondary legislation made under section 267. If that is the intention, the Government should say so and identify the legislative vehicle it plans to use. If the exclusions are intended to be permanent, however, their introduction through commencement regulations is much harder to justify.