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A ‘Friend’to Legal Certainty

Some elements of the literature in the three countries under analysis have been sceptical as to the broad enactment of sunset clauses and their impact on legal certainty. Is this scepticism justified? The arguments of the advocates of sunset clauses can be reduced to two main points of view: first, under uncertain conditions sunset clauses may provide more legal certainty than permanent legislation; secondly, sunset clauses constitute an instrument to tackle legal uncertainty caused either by the unknown effects of a new regulation or by changed circumstances or new information.

(a) Sunset clauses as a source of certainty

In Germany, Chanos argued that the alleged uncertainty caused by sunset clauses is merely potential, since sunset clauses do not introduce more uncertainty in the legal order than permanent legislation does.[1] It is often forgotten that the legislator can at any time introduce changes, revise or extinguish permanent laws. Although these revisions imply sufficient political consensus and are submitted to democratic control, citizens are not in principle given any guarantees that permanent legislation will not be revised to fit the wishes of a new majority in Parliament. This argument is even acknowledged by sceptics of sunset clauses in the United States who agree that ‘permanent legislation [merely] creates a certainty illusion, whereby taxpayers are not mindful of the frequent changes of legislation’.[2] Moreover, citizens are normally not previously warned about the intention of the legislator to revise laws, and this ‘surprise effect’ can in abstract interfere with the principle of legal certainty.

The German literature has clearly underlined that laws containing a sunset clause will in principle not be changed before the sunset date. Any changes or revisions should only be accepted on extraordinary grounds and should only occur when required by the public interest.[3] These temporary legislative instruments contain a certain continuity guarantee, thus any change or a possible extinction before the set deadline should be categorically refused.[4] Sunset clauses provide citizens with a time framework on which they can rely.[5] In Germany, this framework refers normally to a period of five years, so during this time-span citizens are provided with some certainty as to the inalterability of their rights and duties.[6] In this light, the principle of legal certainty would not be put at stake by sunset clauses, but instead it could function as an impediment to abrupt and unjustified changes before the sunset occurs. In the Netherlands, this perception of sunset clauses has not been extensively developed, but it appears to be accepted in the literature that this sunset period should in principle be respected.[7]

The argument that sunset clauses can provide for more legal certainty than regular legislation has also been supported by research. In an empirical study conducted by the Bertelsmann Stiftung, it was underlined that sunset clauses are adequate to fulfil the policy goal of providing for ‘more legal flexibility’. These provisions can notably be introduced, first, in regulations with uncertain effects, namely, in the context of new or risky policy areas; or secondly, to take account of changes in relevant circumstances.[8] In these scenarios, the employment of sunset clauses help to tackle uncertainty.

  • [1] Antonis Chanos, Moglichkeiten und Grenzen der Befristung parlamenta-rischer Gesetzgebung, (Duncker and Humblot, 1999) 71.
  • [2] Dewey, ‘Sundown and You Better Take Care’, n. 39 above.
  • [3] Jan Funke, Burokratieabbau mit Hilfe zeitlich befristeter Gesetze: zu denErfolgsbedingungen der Sunset-Gesetzgebung (AVM, 2011).
  • [4] Chanos, Moglichkeiten und Grenzen der Befristung parlamentarischerGesetzgebung, n. 51 above, 71.
  • [5] Ibid. 71.
  • [6] Alexander Tot, Befristung von Gesetzen, Seminar Moderne Rechtsetzung,Speyer, DHV, available at www.dhv-speyer.de/HILL/Lehrangebot/Wintersemester-2005/Moderne_Rechtsetzung/Referate/Tot,%20Alexander/Seminararbeit.pdf.
  • [7] Eijlander and Van Gestel, Horizonwetgeving: effectief middle in de strijdtegen toenemende regeldruk?, n. 48 above.
  • [8] Bertelsmann Stiftung, Sunset Legislation and Better Regulation: EmpiricalEvidence from Four Countries (Bertelsmann Stiftung, 2010) 21.
 
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