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This Order enacts specific, outstanding sections of the Criminal Justice and Immigration Act 2008, bringing them into immediate legal effect on 15th February 2010, while simultaneously introducing saving provisions to maintain the operation of previous legal frameworks where necessary to prevent disruption during the transition to the new legislation.
Arguments For
The Order ensures the structured and timely implementation of agreed-upon elements of the Criminal Justice and Immigration Act 2008.
Saving provisions minimize disruption by preserving pre-existing legal arrangements where the new commencement might create unintended gaps or conflicts in established procedures.
Phased commencement allows the sectors affected, such as the justice system, to adequately prepare resources and adapt procedures ahead of new legislative requirements taking effect.
Arguments Against
The staggered commencement process can lead to temporary legal uncertainty where some provisions of the Act are in force while others relevant to them are not yet active.
The need for multiple commencement orders suggests significant complexity in the original Act, potentially making full compliance challenging for those involved.
Saving provisions introduce complexity by requiring practitioners to refer to both the old and new legal frameworks simultaneously until the transition is fully complete.
THE CRIMINAL JUSTICE AND IMMIGRATION ACT 2008 (COMMENCEMENT NO. 5 AND SAVING PROVISIONS) ORDER 2010
Made
8th February 2010 Coming into force
15th February 2010
This formatting indicates the official title of the statutory instrument.
It establishes that the order was legally made on February 8th, 2010, and it officially took effect on February 15th, 2010, specifying the date for its legal operation.
The Secretary of State makes the following Order in exercise of the powers conferred by section 159(4) and (5) of the Criminal Justice and Immigration Act 2008:
- This Order may be cited as the Criminal Justice and Immigration Act 2008 (Commencement No. 5 and Saving Provisions) Order 2010 and shall come into force on 15th February 2010.
The Secretary of State issued this Order using the specific powers granted by subsections (4) and (5) of section 159 of the Criminal Justice and Immigration Act 2008.
The Order is formally named as shown and became legally effective on February 15th, 2010.
2.—(1) The following provisions of the Criminal Justice and Immigration Act 2008 shall come into force on 15th February 2010—
(a) Section 34(4) and (5);
(b) Section 35, except so far as it relates to any enactment repealed or amended by this Order;
(c) Section 72(2) to (5); and
(d) Section 74.
This section details which specific parts of the 2008 Act become law on the specified date of February 15th, 2010.
This includes subsections (4) and (5) of Section 34, the entirety of Section 35 (unless it affects another part being repealed or changed by this specific Order), and parts of Section 72, along with all of Section 74.
(2) In relation to the provisions mentioned in paragraph (1), section 159(4) of the Act shall have effect as if for the reference to “the commencement date” there were substituted a reference to 15th February 2010.
This clarifies how the commencement power defined in the primary Act (section 159(4)) is applied here.
It confirms that for the commencement dates outlined in this Order, the relevant date is specifically February 15th, 2010, instead of the generic 'commencement date' mentioned elsewhere in the main legislation.
- Section 35(1) of the Criminal Justice and Immigration Act 2008 shall not come into force on 15th February 2010.
Crucially, this states that subsection (1) of Section 35 of the Act will not be brought into effect by this particular commencement order on February 15th, 2010, indicating that part will commence later or under a different instrument.
4.—(1) The commencement of the provisions of the Act specified in article 2 shall be subject to the saving provisions set out in Schedule 1.
(2) The Schedule below is a saving provision for the purposes of section 159(5) of the Act.
This establishes that the commencement of the provisions listed in Article 2 is conditional upon adhering to the specific exceptions or continuation rules listed in Schedule 1.
Furthermore, this Schedule itself is officially designated as a 'saving provision' as authorized by section 159(5) of the main Act.
SCHEDULE
SAVING PROVISION
- Section 35(3) and (5) of the Nationality, Immigration and Asylum Act 2002 (c. 33) shall continue to have effect as if the amendments made to them by paragraph 20(4) of Schedule 14 to the Act had not been made.
This Schedule contains the necessary transitional rule.
It mandates that subsections (3) and (5) of Section 35 of the earlier Nationality, Immigration and Asylum Act 2002 remain unchanged, overriding the amendments that the Criminal Justice and Immigration Act 2008 (via Schedule 14, paragraph 20(4)) otherwise made to them.
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