The Sunset Clause

Updated: Nov 9

Sunset Clauses or Sunset Provisions are a piece of text, unusually a sentence, paragraph or section, included in a legal document such as a contract or legislation that essential sets a time limit or expiry date on that legal document. It exists for the sole purposes that upon a set date or period from enactment the legal parameters cease to have any legal effect. Any action done during that period is valid, but not actions after the specified date.

Sunset Clauses have been around since Ancient Rome referred to as;

Ad tempus concessa post tempus censetur denegata

meaning "what is admitted for a period will be refused after the period"

You may have heard specific references to Sunset Clauses been bounced around a lot recently, particularly when dealing with COVID-19. Most laws and legislations don’t include a sunset clause, remaining valid indefinitely. But Emergency legislation from the government usually includes a sunset provision because unlike other legislation that is carefully drafted, reviewed and debated before enacted, emergency legislation is usually rushed through with little to no debate and powers granted or infringements on civil liberties required and such moves are not without controversy.

The emergency legislation around COVID-19 came with unprecedented powers of authority and restrictions on public freedom. Laws like these are dangerous because if drafted and enacted incorrectly they could have long term consequences particularly if a corrupt government were to take advantage of them for reasons other than the original intent. But putting aside abuses of power, having a requirement to get policies revoked, amended etc, take time and doesn’t happen overnight.

The Idea of a sunset clause is to eliminate the need to take action to end a piece of legislation. This ensures that the draconian legislation much like the COVID-19 management only remains valid for as long as required and not a moment longer. So that when the 'Emergency' is over, automatically, too are the laws and powers that were rushed through.

During the drafting of the Health Bill 2020, many opposition members and civil rights movements including the Irish Council for Civil Liberties called on Government to ensure there was a sunset clause included in the legislation. A November 9th date was set with the intention of reviewing for an extension. In late October a mere 45 minutes was squeezed into Dail schedule to debate. The Irish Times reported that civil liberty groups and oppositions were critical of this and forced a rethink. The debate resulted in the extension of the powers held in the Health Act 2021 and a new sunset clause set for June 2021.

This highlights two points, the first is that yes sunset clauses means that on the expiry date, legislation ends and there is a requirement to more or less restart the legislative process to be extended, however, this gives rise to point two; Such extensions of a kind are possible and risks existing indefinitely through extensions if the system is rigged. In our system, if the majority in the legislative process are convinced such 'an emergency' remains legislation could remain in perpetuity. The ICCL report that Ireland has a history of this. "Extending emergency measures beyond emergency times"

This last occurred after the Troubles. The ICCL state;

"The Special Criminal Court and the Offences Against the State Act both formed part of the State’s response to the Troubles. In the years since the Troubles have ended, their remit has slowly been extended, in violation of all of our rights. The UN Human Rights Committee and the UN Special Rapporteur on Counter-Terrorism have called for their abolishment on many occasions."

With this in mind, we will need to watch the proceedings next June very carefully. Perhaps we should also be rethinking whether governments alone should have the power to call emergencies, whether sunset extensions should be capped and whether there should be a limit to what a government can and can't implement during an emergency.

Absolute power corrupts absolutely.

Our public representatives are human, with human flaws and human desires…

Humans are as immune to corruption as they are to any virus. No matter how bad situations get, we should never be so willing to surrender our freedom.