Commentary on Sections Part 4 – General Section 37: Power to make transitional and consequential provision etc
358.Subsection (1)(a) of section 37 confers on the Secretary of State the power to make transitional or transitory provisions or savings in connection with the coming into force of any provision of the Act. However, subsection (1)(a) is limited by the exclusions in subsection (2). Subsection (3) provides for appropriate transitional arrangements or savings to be made by the Welsh Ministers. Subsection (4) provides for appropriate transitional arrangements or savings to be made by DHSSPSNI. Subsection (5) provides that an order under the section may amend any enactment, and subsection (12) defines enactment as an enactment in or in an instrument made under a Measure or Act of the National Assembly for Wales or Northern Ireland legislation as well as an Act of Parliament. Subsection (6) provides for modifications by order of a provision brought into force to have effect until another provision comes into force.
359.Transitional arrangements are likely to be necessary in relation to commencement of various provisions of the Act, including the provisions for suspension and in relation to tobacco and pharmaceutical services. Through transitional arrangements it will be possible to modify the application of the Act to existing situations and to ensure transition from the old law and procedures to the new.
360.Subsection (1)(b) of section 37 also confers on the Secretary of State power by order to make such supplementary, incidental, or consequential provision as the Secretary of State considers appropriate for the purposes of, in consequence of, or for giving full effect to, any provision of the Act. This would, for example, enable amendments to be made to references in legislation to NHS trusts to take into account the possibility created by provisions of the Act of there being a new kind of NHS trust, a de-authorised NHS foundation trust.
361.By subsection (5) together with subsection (9)(a) such orders of the Secretary of State may amend, repeal, revoke or otherwise modify any enactment contained in an Act of Parliament in which case they would be subject to approval by each House of Parliament under the affirmative resolution procedure. By subsection (5) together with subsection (9)(b) such orders of the Secretary of State, where they amend other legislation will be subject to the negative resolution procedure. The powers are additional to powers in any other provision of the Act.