Commentary on Sections Part 4 – General Section 40: Commencement
364.Section 40 provides for the coming into force of the provisions of the Act. Subsection (1) provides that the Act, with certain exceptions, will come into force on a day appointed in an order made by the Secretary of State by statutory instrument. By subsection (4) different days may be appointed for different purposes or different areas.
365.
	The first exception is that, on the day on which the Act received Royal Assent, 12th November 2009, various provisions came into force by virtue of subsection (5). The provisions are the repeal of section 16(1A) of the 2002 Act (see paragraph 9(2) and (4) of Schedule 4) together with the associated repeals and revocations made by the Act, and Section 40 itself, together with Sections 37 (power to make transitional and consequential provision etc), 39 (extent) and 41 (short title).
366.Secondly, for the purposes of making regulations, the following regulation-making powers also came into force by virtue of subsection (6) on the day on which the Act received Royal Assent: the power at section 8 for the Secretary of State to make regulations to disapply the duty to publish quality accounts, those for regulations providing that no offence is committed in relation to a tobacco advertisement by specialist tobacconists in certain circumstances as inserted into the 2002 Act by Section 20, for making provision in relation to tobacco displays as inserted into the 2002 Act by section 21, for prohibiting or imposing requirements in relation to sales of tobacco products from vending machines as inserted into the 1991 Act by section 22, or for restricting sales from vending machines in Northern Ireland as inserted into the 1991 (NI) Order by section 23 and the provisions at paragraphs 11 and 12 of Schedule 4.
367.The third exception is in relation to some of the minor and consequential amendments made in relation to the tobacco provisions in Schedule 4 which are identified at subsection (7). These come into force at the end of the period of two months beginning on the day on which the Act received Royal Assent.
368.Subsection (8) provides for the section that introduces a provision of a Schedule mentioned in subsection (5), (6) or (7) to come into force for the purposes of the particular provision only.
369.The Welsh Ministers have power by order made by statutory instrument to bring into force on a day appointed by them provisions of the Act which relate to Wales and are identified at subsection (2). Similarly DHSSPSNI has power by order made by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12) to bring into force on a day appointed by DHSSPSNI provisions of the Act which relate to Northern Ireland and are identified at subsection (3). These powers at subsections (2) and (3) each benefit from the flexibilities provided by subsection (4) and respectively constitute further exceptions to the power at subsection (1).
370.Where amendments made by Schedule 3 (introduced by Section 19) relate to bodies operating in Wales, Scotland or Northern Ireland as well as in England, the Secretary of State is obliged to consult the Welsh Ministers, the Scottish Ministers or DHSSPSNI as appropriate before making an order bringing the amendments into force (see subsections (9), (10) (11) and (12)).
371.Insofar as the provisions of Schedule 3 relate to amendments to the NHS (Wales) Act, the Welsh Ministers are obliged to consult the Secretary of State before making an order bringing the amendments into force by virtue of subsection (13).