Release Dates - Will They Won't They?

The Sentencing Act 2026 was passed earlier this year, however, there were various commencement provisions which guided when certain provisions of the legislation would take effect.

There were a number of changes which were due to take effect on 2^nd September 2026, some of these were stark and others less so.

The Sentencing Act 2026 (Commencement No. 4) Regulations 2026 were passed on 8^th June 2026. The commencement provisions are far from straight forward. The approach taken meant that there was a phased release scheme, rather than the change in release date taking effect for all offenders on the same date.

The key provisions which were due to take effect on 2^nd September 2026, for some offenders, are found in Section 23 of the Sentencing Act 2026 (release):

(3) In section 244(3) (requisite custodial period for prisoners not subject to special provision for release), for paragraph (a) substitute—

(a)      in relation to a prisoner serving one sentence imposed under section 91 of the PCC(S)A 2000 or section 250 of the Sentencing Code, one-half of the sentence,

(aa)     in relation to a prisoner serving one sentence of any other kind, one-third of the sentence,”.

(4)      In section 244ZA(8) (requisite custodial period for certain violent or sexual offenders), for paragraph (a) (but not the “and” at the end of that paragraph) substitute—

(a)      in relation to a prisoner serving one sentence within subsection (4) or (5), one-half of the prisoner’s sentence,

(aa)     in relation to a prisoner serving one sentence within subsection (6), two-thirds of the prisoner’s sentence,”.

There is, or rather was, intended to be a straight forward change to those who are currently subject to 40% release. From 2 September 2026, offenders receiving standard determinate sentences will become eligible for release after serving one third of the custodial term, subject to specified exceptions that include violent and sexual offences. The existing framework permitting release at the 40% point for many such offenders under SDS40 will be abolished on the same date for all individuals sentenced on or after 2 September 2026.

There are also changes to those who are serving sentences which are not subject to SDS 40 and instead were subject to serving two-thirds. The release date will now be reduced to 50% rather than two thirds, this has led to serious outcry from the public.

The new release provisions due to take effect on 2 September 2026 will also operate retrospectively. Instead of applying retrospectively to all offences on that date, they will be introduced in a staggered sequence, moving upwards through sentence lengths, likely to ease the operational impact on prison and probation services as prisoners become eligible for release.

All of this is well and good, save that the Prime Minister has indicated a wish to review whether these release provisions should take effect.

There is no legal obligation on a minister to exercise a commencement power, but an implied duty exists. The House of Lords confirmed in R v Secretary of State for the Home Department, ex p Fire Brigades Union [1995] UKHL 3 that a formal decision never to bring enacted provisions into force would be unlawful. One of the best‑known examples of legislation that has never been commenced is the Easter Act 1928, which fixes Easter Day as the first Sunday after the second Saturday in April and received Royal Assent on 3 August 1928.

Notwithstanding the above, there are examples of where legislation has been introduced through commencement provisions but has subsequently been revoked. The Higher Education (Freedom of Speech) Act 2023 (Commencement No. 2) (Revocation) Regulations 2024. These were due to come into force on 1^st August 2024 and 1^st September 2025, however, on 25^th July 2024 the commencement was revoked. This legislation would have placed a duty on Higher Education Providers to protect freedom of speech and make amendments to civil claims for breach of such rights.

Further support for the approach which may be considered can be found in The Retained EU Law (Revocation and Reform) Act 2023 (Commencement No. 2 and Saving Provisions) (Revocation) Regulations 2024. These provisions were due to come into force on 1^st October 2024 but were revoked on 17^th September 2024. The reforms would have impacted the approach taken to applying EU case law.

In short therefore, it would appear perfectly permissible for the Government to take the view that commencement on 2^nd September 2026 is no longer appropriate.

Whether or not a challenge for judicial review on the basis of legitimate expectation were to succeed thereafter will remain to be seen, such a challenge of itself would certainly seem likely if the decision was taken to row back on the early release provisions.