Is this kind of provision an adequate safeguard against the normalisation of emergency powers?by Sean Molloy / April 28, 2020 / Leave a comment
Sunset clauses are provisions that determine the expiry of a law or regulation within a predetermined period. Through their use, legislation or a section of legislation automatically ceases in its effect after a certain time. In theory, sunset clauses can limit the potential reach and adverse impacts of governments that adopt legislation in response to emergency situations, such as the current Covid-19 pandemic. Indeed, the Coronavirus Act 2020 contains several such provisions and this was viewed as essential in limiting the duration of radical powers. However, it is important to adopt a healthy degree of scepticism. Sunset clauses do not always serve as the safeguard people expect. As the coronavirus emergency continues it is important to reflect on how they work and where they come from, to ensure best practice in the months ahead.
The precise origins of sunset clauses are contested. Some locate their roots in Roman law but the first philosophical reference is in the laws of Plato. At the time of the Roman Republic, the empowerment of the Roman Senate to collect special taxes and to activate troops was limited in time and extent. Those empowerments ended before the expiration of an electoral office, such as the Proconsul (Antonios Kouroutakis). In the UK, sunset clauses were employed by parliaments by at least the time of the reign of Henry VII and appeared in statutes by 1500. The series of Habeas Corpus Suspension Acts enacted from 1689 all had specified expiry dates; up until 1777, these acts lasted on average for five months. In the US, Chris Mooney traces the history of sunsetting back to the writings of Thomas Jefferson. Jefferson believed that a version of sunsetting sprang directly from natural law: “Every constitution… and every law,” he wrote, “naturally expires at the end of 19 years,” which was considered the length of a generation in his era. Sunset clauses are also readily identifiable in some of the first post-independence legislation. For instance, enacted as part of a legislative package known as the Alien and Sedition Acts during a period of bitter partisan division between the Federalists and Republicans, the famous Sedition Act of 1798 criminalised the making of certain statements critical of the government. In accordance with its sunset clause, the Act expired on 3rd March 1801, the last day of John Adams’s presidency.
Regardless of origins, the…