The Constitutional Value of Sunset Clauses

An historical and normative analysis

Antonios Emmanouil Kouroutakis, Antonios Kouroutakis

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781138366756
• eBook ISBN: 9781315454313
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

In recent years, sunset clauses have mostly been associated with emergency legislation introduced in the wake of terrorist attacks. However, as this book demonstrates, they have a long history and a substantial constitutional impact on the separation of powers and the rule of law. In addition, the constitutional value of such clauses is examined from certain neglected normative aspects pertaining to concepts such as deliberative and consensus democracy, parliamentary sovereignty and constitutional dialogue.

The work is an amalgam of three perspectives: the historical, the positive and the normative. All three are intertwined and each subsequent part builds upon the findings of the previous one. The historical perspective investigates the historical development of sunset clauses since the first Parliaments in England. The positive perspective examines the legal effect and the contemporary utility of sunset clauses. Finally, the normative perspective analyses their interaction with several models of separation of powers, and their influence on the dialogue between various institutions as it values their impact on the rule of law, formal and substantive.

The detailed examination of this topical subject will be a valuable resource for academics, researchers and policy makers.

Part I
Positive analysis of sunset clauses

1
Definition, taxonomy and origin of sunset clauses

Perpetua lex est, nullam legem humanum ac positivam perpetuam esse; et clausula quae abrogationem excludit initio non valet. (It is a perpetual law that no human or positive law can be perpetual; and a clause in a law which precludes the power of abrogation is void ab initio.)

Bacon’s Max in Reg 19

The meaning of sunset clauses and their legal effect

Defining sunset clauses

The duration of laws and their perpetual binding force have always been a central concern of philosophers and academics. In The Concept of Law, Hart discusses the persistence of law and observes that the Witchcraft Act 1735 was a legislative expression of some centuries ago, but was still in use until the middle of the 20th century. ¹ The laws of past generations are the most prominent feature in the statute book and mark the life of present and future generations.

Indeed, while ordinary legislation endures in force until amended or repealed, the inclusion of a sunset clause defines the duration of a law. Therefore such a law is commonly viewed as temporary. ² For instance, Parliament passed the Terrorist Asset-Freezing Act 2010, which was limited in duration through a sunset clause in section 1, ending on 31 December 2010, ³ and thus in the title the label ‘Temporary Provisions’ was added in parentheses. ⁴

Sunset clauses are statutory provisions providing that a particular law will expire automatically on a particular date unless it is re-authorised by the legislature. ⁵ Thus, according to Hart’s classification between primary and secondary legal rules, a sunset clause belongs in the latter category, given that it is a rule about the duration of the rules. ⁶

Such clauses have been used for a very long time. Despite this, the term ‘sunset clause’ is a relatively recent term in legal scholarship, established in the US after the Watergate scandal. The term was first proposed by Common Cause, a non-party organisation founded in 1970 with the aim of promoting accountability in the political system.

At that time, the use of a sunset clause was expected to create an incentive for the periodic and comprehensive executive and legislative evaluation of agencies. ⁷ It is noteworthy that the term ‘sunset’ was used, as opposed to the term ‘sunshine’ law. ⁸ According to the latter, regulatory authorities are required to make available to the public material pertaining to meetings, decisions and records. ⁹ Further, in contrast with the contemporary definition of the term ‘sunset clause’, during the 19th century the term ‘sunset clause’ was used in debtor poor law and referred to the provision authorising obedience after the expiration of the writ commanding arrest. ¹⁰

Nowadays, the term sunset clause connotes a clause limiting the duration of an act. Within the literature such a clause is also described as a time-limitation clause ¹¹ or duration clause, ¹² or a temporary provision. ¹³ However, these terms are not synonymous with the term sunset clause; while there is some overlap between them, they are not identical or coterminous. ¹⁴ In relation to a duration clause, it suffices to mention that not all such clauses prescribe an automatic termination date. For instance, the Constitution of Clarendon included a duration clause which prescribed that

There are, moreover, many other and great customs and dignities of the holy mother church, and of the lord king, and of the barons of the kingdom, which are not contained in this writ. And may they be preserved to the holy church, and to the lord king, and to his heirs, and to the barons of the kingdom, and may they be inviolably observed for ever. ¹⁵

Similarly, there is an overlap between temporary provisions and sunset clauses. In principle, the inclusion of a sunset clause in an act signals its temporal character. Consequently, the correlation between temporary legislation and sunset clauses is not accurate, as temporary legislation does not always contain a sunset clause. This is exemplified by the Indemnity Acts, which are undoubtedly a subset of temporary legislation but have a retrospective character.

The most significant example of the use of Indemnity Acts indemnified dissenters who were holding offices, violating the Test ¹⁶ and Corporation Acts. ¹⁷ According to the Test and Corporation Acts all civil, military and corporation officers were supposed to take the Sacrament of the Church of England, and due to that requirement, dissenters were excluded from offices. Thus in 1728 Sir Robert Walpole introduced the policy of the Annual Indemnity Acts, ¹⁸ which were renewed for more than a century until 1828 when the Test and Corporation Acts finally were repealed. An Indemnity Act provided that ‘Members of Corporations who have neglected to take the Oath of Office, qualifying themselves by January 1731, indemnified’. ¹⁹

By examining contemporary parliamentary debates, it is assumed that sunset clauses are either ignored or they are to be used only rarely. In particular, the government responded verbatim to the Report of the Joint Committee on the Draft Civil Contingencies Bill (which argued in favour of the use of a sunset clause), stating that ‘the inclusion of a provision in an Act that provides for the expiry of the Act after a certain length of time, commonly referred to as a “sunset clause”, is relatively unusual and requires careful consideration’. ²⁰

Moreover, a statement from a Member of Parliament advocating the use of a sunset clause in the Local Government Bill confirms the suspicion that at the dawn of the 21st century, sunset clauses and temporary legislation were treated as an exceptional legislative tool to be used only rarely:

The Minister will ask why the powers should be time-limited, when so many other powers are not. If that is his approach, it will illustrate the very constitutional point that I seek to make and it will show how far we have fallen from grace. The Minister should be asking why we should not limit the powers in time, because Parliament used to do so regularly. ²¹

This picture is similarly represented in the US, Germany and the Netherlands, as Ranchordás accurately remarks that ‘in practice, sunset clauses and experimental laws are almost unknown instruments to legal practitioners and represent a minority of the annual production of legislation in the three jurisdictions under analysis’. ²²

However, in the UK, the use of sunset clauses varies. In some fields, such clauses are nonetheless included in a broad spectrum of legislation. For instance, in 2002 the Secretary of State for the Home Department confirmed that his Department had used sunset clauses in five bills introduced by the Home Office. ²³ This is not to say that the operation of sunset clauses is restricted exclusively to the Home Department, since sporadic use of sunset clauses is evident across the whole spectrum of legislative activity and when there is a need for a temporary regulation.

In fields such as in taxation, their use is evident and a plethora of reports urge their use, ²⁴ but we have to acknowledge that in some other fields sunset clauses are not used at all. This remark is exemplified by the response of the Foreign Secretary to a question regarding sunset clauses in Foreign and Commonwealth Affairs on 21 January 2004. The Foreign Secretary replied that:

whether a sunset clause is needed in legislation depends on the circumstance of each Bill. In the case of the Foreign and Commonwealth Office (FCO), much of our legislation is to implement HMG’s international obligations, so if those obligations do not have a specific time limit, a limit in our domestic legislation would not be appropriate. No Acts of Parliament since 1997 for which the FCO is responsible contained a sunset clause. ²⁵

Unequivocally, the misconceptions regarding the frequency of sunset clauses and the relatively minimal discussion of such clauses in the UK have resulted in certain neglected normative aspects of such laws. On top of that, not only are sunset clauses an element of the contemporary statute book, but they also have been an integral part of the statute book in the legislative history of the UK. ²⁶

Indeed, academic literature does not have many reference sources on sunset clauses, and the divergent approaches on the use of temporary laws, recorded in law journal articles, prove that it is a highly controversial topic.

A broader research concerning temporary legislation in the US is published by Gensen, who examines temporary legislation and endorses its use, and he argues that in specific fields such legislation should be the rule and not the exception. ²⁷ In addition, Fagan’s analysis of temporary laws is centred around the relationship between legislators and citizens, legislators and special interest groups, and current and future legislators. ²⁸

Some articles have been published in US journals on ...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Preface
• Acknowledgements
• List of abbreviations
• List of instruments
• Table of cases
• PART I Positive analysis of sunset clauses
• PART II Historical overview of sunset clauses
• PART III Institutional effect of sunset clauses
• PART IV Rule of law and sunset clauses
• Bibliography
• Index