Supplementary
Section 35: Power to modify enactments
137.Section 35 provides an order-making power for the Secretary of State to modify enactments. Subsection (1) provides that an order made by the Secretary of State may provide for an enactment or description of enactments to apply, with such modification as considered necessary or expedient, in relation to relevant persons (as defined in subsection (2)) or to the exercise of functions by those persons. Subsection (2) defines “relevant persons” as the Secretary of State by whom general functions are exercisable, the Director, designated customs officials, immigration officers and officials in the department of that Secretary of State, and provides that a reference to relevant persons includes a reference to any description of relevant persons.
138.Subsection (3) states that an order made under this section may, in particular, include provision for, or in connection with, extending to the persons specified in subsection (2) an exemption or protection afforded to other persons in another enactment and providing for the disclosure of information to, or for doing other things in relation to, the relevant persons.
139.Subsection (4) obliges the Secretary of State to consult with the Commissioners before making an order under section 35 relating to customs matters or the exercise of a customs function.
Section 36: Power to make supplementary etc. provision
140.Section 36(1) provides the Secretary of State with an order-making power for the purpose of making such incidental, supplementary, consequential provision, or such transitional or transitory provision or savings, as considered appropriate for the purposes of this Part of the Act, or in consequence, or for giving full effect to, any provision made by or under this Part of the Act.
141.Section 36(2) provides that an order made under section 36 may amend, repeal, revoke or otherwise modify any enactment, including the Act, and subsection (3) provides that the power to make an order under subsection (1) includes the power to repeal or revoke an enactment that is spent.
142.Section 36(4) provides that nothing in Part 1 of the Act affects the generality of the power in section 36.
Section 37: Subordinate legislation
143.Section 37 makes further provision for the making of subordinate legislation under this Part. Subsection (1) provides that the orders and regulations under Part 1 of the Act must be made by statutory instrument, and subsection (2) provides that such instruments may include incidental, supplementary and consequential provision; make transitional or transitory provision or savings; and make different provision for different cases or circumstances. Subsections (3) to (6) establish the parliamentary procedures to which orders and regulations made under Part 1 are subject. Statutory instruments containing an order or regulations to which subsection (4) applies are subject to the affirmative resolution procedure. These are the orders or regulations made under section 2, 8, 16(8), 23, or 35 and any order containing provision amending or repealing primary legislation by virtue of section 36(2). Statutory instruments containing regulations under section 29, or an order under section 36 that does not amend or repeal primary legislation, are subject to the negative resolution procedure. An order under section 33 (power to require payment into the consolidated fund) is subject to annulment by the House of Commons. Subsection (7) defines primary legislation for the purpose of section 37, while subsection (8) makes it clear that that section does not apply to an order made under section 31 of the Act (assignment of functions to the Director of Revenue and Customs Prosecutions by the Attorney General). Those orders are not made by statutory instrument and follow no Parliamentary procedure. This is consistent with other similar order-making powers of the Attorney General such as those found in section 35 of the CRCA 2005 relating to Revenue and Customs Prosecutions and section 3(2)(g) of the Prosecution of Offences Act 1985 in relation to the assignment of functions to the Director of Public Prosecutions.
Section 38: Interpretation
144.Section 38 sets out the interpretation of the terminology used in this Part.
