A sunset clause is a legal provision that provides for the expiry of a law or part of a law at a later date. A sunset clause does not aim at continuity, rather it ‘sets the sun’ on a provision or entire statute on a specific date, unless there are substantial reasons to believe that the former should be extended for a determined period (Ranchordas, 2014). Unlike most laws, the continued validity of legislation subject to a sunset clause is contingent upon some future action by the legislature(Ip, 2013).
A sunset clause can be used as an agenda setting tool as it can set an expiration date to a legal provision at the outset. Within Hood’s NATO taxonomy, sunset clauses and periodic reviews can be seen as an ‘Authority’ resource used by the government to set the agenda, as they can use their power to introduce a policy when needed and mandate the termination date ahead of time based on a periodic review on its usefulness. Overcoming legislative inertia can be seen as one of the major rationales for sunset clauses as it changes the default position form permanent to temporary. A sunset clause provides enough leeway to extend the provision at a later date if necessary after a periodic review has taken place. But more importantly, it sets a policy termination date at the outset which can otherwise be a difficult thing to do as there can be resistance to termination (Bardach, 1978; DeLeon, 1978, 1983; Kirkpatrick et al., 1999; Geva-May, 2004) by different groups along with legislative inertia.
According to Jantz and Veit (2010), a sunset clause has two main characteristics. It creates a “threat of termination” for laws by shifting the burden of proof from those 17 who would terminate a policy program to those who would renew it and it requires a periodic review and evaluation of the effectiveness and efficiency of government functions and program. The termination or renewal should only occur after an ex post evaluation has taken place, which verifies whether the objective for which it was enacted has been achieved, or whether the provision should be renewed for a determined period. Although sunset clauses can lead to the termination of a law or a policy program, it can also serve to provide a broader legislative perspective as it requires periodic review and evaluation of the effectiveness and efficiency of government functions and programs through the legislative branch. Ideally, it can foster evaluation activities and policy learning.
Jantz and Veit(2010) in their empirical study of the application of sunsetting in four countries, the United States, Australia, Switzerland and Germany conclude that implementation of sunsetting is a difficult task. They write that on the one hand, international experiences show that general sunset regimes often fail because of limited time and resources for sunset reviews, a lack of acceptance, and unrealistic expectations with regard to the effects of sunsetting. On the other hand, sunset clauses are an established feature of the regulatory toolbox- they are used to bring about political compromise, to strengthen parliamentary control of regulatory activities in government agencies, or to foster better regulation and evidence-based policymaking. So sunset clauses and periodic reviews can be used as a tool at the agenda setting phase to bring about specific policies and programs for a limited time and gives the discretion to renew or terminate it as necessary.
Bardach, Eugene, “Policy Termination as a Political Process” Policy Sciences, 7, 1976, pp. 123-131.
deLeon, Peter, “Public Policy Termination. An End and a Beginning” Policy Analysis, 4, 1978, pp. 369-392.
deLeon, Peter, “Policy Evaluation and Program Termination” Policy Studies Review, 1983, pp. 631-647.
Geva-May, Iris, “Riding the wave of Opportunity: Termination in Public Policy” Journal of Public Administration Research and Theory, 14, 2004, pp. 309-333
Ip, J. C. “Sunset Clauses and Counterterrorism Legislation” Public Law, January, 2014, pp 74-99.
Jantz, Bastian and Sylvia Veit. “Sunset Legislation and Better Regulation: Empirical Evidence from Four Countries” Study commissioned by Bertelsmann Stiftung. June 2010.
Kirkpatrick, Susan et al. “The Policy Termination Process” Review of Policy Research 16, 1999, pp. 209-238.
Ranchordas, Sofia. “Sunset Clauses and Experimental Regulations: Blessing or Curse for Legal Certainty” Statute Law Review, February 11, 2014, pp. 1-18.