A Bill becomes an Act when it receives Royal Assent and that assent is notified to both Houses of Parliament. It becomes part of the law at this point. This does not mean, however, that the Act comes into force at that point. While an Act can come into force on Royal Assent, increasingly an Act will state when it comes into force, or – more usually – state that the Secretary of State will bring provisions into force through secondary legislation. This delay is usually to allow those affected by the law to prepare for it. In this sort of situation, the provisions giving the Secretary of State power will come into force on Royal Assent, often together with provisions that provide for definitions, the name of the Act. This process is known as commencement.

There is no legal obligation for a Minister to exercise a commencement power, but there is an implied duty. Further, the House of Lords held that a formal decision never to bring the provisions into force would be unlawful. Despite this, there are occasions when there has been a delay. For example, a commencement order in relation to ss 19-21 of the Digital Economy Act 2010 was laid only this summer – with those provisions only coming into full force on 6th April 2024. Sometimes, provisions are not brought into force at all: section 40 of the Crime and Courts Act (part of the Leveson settlement) has not been commenced and the Government has announced plans to repeal it.

As received much attention during the passage of the Online Safety Bill, part 3 of the Digital Economy Act has not been commenced, though that is not to be abolished but rather replaced by parts of the Online Safety regime.

It is not just in the context of media and communications that provisions are not commenced: for example, the Government confirmed last year that it had no current plans for the commencement of the provisions in the Political Parties and Elections Act 2009 which would prohibit political parties from accepting a donation of more than £7,500 from an individual who is not resident in the United Kingdom for the purposes of income tax.

So where does this leave the Online Safety Act?

Interestingly, the commencement clause in the Bill was changed over the course of its passage through Parliament. Initially (cl 93, Bill as introduced), it gave the Secretary of State the power to commence provisions other than those listed in the clause – and these mainly referred to definitions (including schedules 5, 6 and 7 – though note that the National Security Act offence included in Schedule 7 itself still needs commencement) and overview sections. After Report stage in the Lords, the commencement clause (cl 241, Bill as at Lords Report) became a lot longer, and crucially, the obligations on Ofcom to draw up codes and guidance come into force at Royal Assent (though the guidance relating to women and girls and research access are excluded from the list), as well as obligations relating to maintaining the register of categories of service. The provisions imposing time limits on Ofcom for producing these various documents likewise come into force. The duties on the service providers, by contrast, require commencement as do the new criminal offences introduced in Part 10 (false and threatening communications offences, offence of sending flashing images, offence of encouraging serious self-harm, cyber-flashing, and threatening to share intimate images).