The Constitutional Value of Sunset Clauses: An Historical and Normative Analysis

The Constitutional Value of Sunset Clauses: An Historical and Normative Analysis Why would anybody write a whole book about the constitutional value of sunset clauses? Are they that important? Is there that much to say about them? Is this a case of someone who having written a doctoral thesis cannot bear to see it embalmed on the faculty shelves and feels sure that anything that has absorbed four years of his or her time must be of interest to a wider public? The author admits that this book is based on his four years of research in Oxford and the preface confirms that the book did indeed emerge out of his doctoral thesis. The preface also admits that the choice of doctoral topic was in part constrained by the difficulty of finding a topic that had not been exhaustively researched and was also of practical and intellectual interest. As the preface says, there has been no in-depth study of sunset clauses in the United Kingdom and it was therefore a subject open to doctoral contributions. The key question, as always, is was the lack of research and publication because sunset clauses are a relatively simple issue you and there is not much that needs to be said about them, or was it an important new field of study waiting to be opened up? Those were the questions in my mind when I began reading the book. So my heart rather sank when I found that the first chapter spent a number of pages trying to define a sunset clause and failed to reach a conclusion more startling than the proposition that there are different ways in statutory technique of achieving the political purpose of time-limited legislation. The chapters on historical overview of sunset clauses were definitely of considerable interest from a political and social perspective. They are perhaps necessarily light on the issue of implied limitations on the temporal validity of legislation, but in other respects the analysis is thorough and interesting. So far, however, at the end of Part II of the book, I had failed to find anything that justified the fundamental exercise of the book. Then in Part III things start to hot up. In particular, the analysis of sunset clauses and the separation of powers, which is achieved in chapter 5, is definitely both novel and overdue. It is certainly true that the increasing acceptance of sunset clauses in the United Kingdom runs parallel to an increasing acceptance by legislature and government alike that Parliament has a continuing role in monitoring, scrutinizing, and affirming the continued effectiveness of legislation, and is not simply a trigger that requires to be pulled in order to allow legislation to be passed in the first place. With that in mind, I would have liked this chapter to be a good deal longer than it is. Tantalizing reference to the relationship between sunset clauses and experimental legislation, for example, require to be expanded and taken in the context of other experimental legislative techniques, which are certainly becoming more accepted very fast in the United Kingdom and are a very significant issue in a separation of powers context. Similarly, the proposition that the less independent the legislature, the more possibilities for the executive to reject the sunset clause amendment is clearly true, but equally it clearly fails even to scratch the surface of the kind of interdependence that is increasingly found between parliaments and governments, and the potential for sunset clauses and other legislative techniques both to develop and reflect the changing relationship. A simple comparison between the different concept of separation of powers in America and Britain is a good starting point, but should preface a much deeper analysis. Similarly, the chapter on sunset clauses and formal rule of law touches tantalizingly at one point on Treasury discussions about the role of sunset clauses in tax legislation and, having mentioned the relationship between sunset clauses and formal evaluation, fails to take this line of thought to its logical conclusion and make the links between the rise of compulsory post-legislative scrutiny—which to some extent owes its origins to European Union legislation—and sunset clauses. So is this book justified? Yes. Is it finished? No. I would very much like to see the doctoral thesis published in this book taken forward into a new edition that concentrates, in particular, on expanding the constitutional implications for the relationship between legislature and government. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Statute Law Review Oxford University Press

The Constitutional Value of Sunset Clauses: An Historical and Normative Analysis

Statute Law Review , Volume Advance Article – May 30, 2018

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Publisher
Oxford University Press
Copyright
© The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com.
ISSN
0144-3593
eISSN
1464-3863
D.O.I.
10.1093/slr/hmy012
Publisher site
See Article on Publisher Site

Abstract

Why would anybody write a whole book about the constitutional value of sunset clauses? Are they that important? Is there that much to say about them? Is this a case of someone who having written a doctoral thesis cannot bear to see it embalmed on the faculty shelves and feels sure that anything that has absorbed four years of his or her time must be of interest to a wider public? The author admits that this book is based on his four years of research in Oxford and the preface confirms that the book did indeed emerge out of his doctoral thesis. The preface also admits that the choice of doctoral topic was in part constrained by the difficulty of finding a topic that had not been exhaustively researched and was also of practical and intellectual interest. As the preface says, there has been no in-depth study of sunset clauses in the United Kingdom and it was therefore a subject open to doctoral contributions. The key question, as always, is was the lack of research and publication because sunset clauses are a relatively simple issue you and there is not much that needs to be said about them, or was it an important new field of study waiting to be opened up? Those were the questions in my mind when I began reading the book. So my heart rather sank when I found that the first chapter spent a number of pages trying to define a sunset clause and failed to reach a conclusion more startling than the proposition that there are different ways in statutory technique of achieving the political purpose of time-limited legislation. The chapters on historical overview of sunset clauses were definitely of considerable interest from a political and social perspective. They are perhaps necessarily light on the issue of implied limitations on the temporal validity of legislation, but in other respects the analysis is thorough and interesting. So far, however, at the end of Part II of the book, I had failed to find anything that justified the fundamental exercise of the book. Then in Part III things start to hot up. In particular, the analysis of sunset clauses and the separation of powers, which is achieved in chapter 5, is definitely both novel and overdue. It is certainly true that the increasing acceptance of sunset clauses in the United Kingdom runs parallel to an increasing acceptance by legislature and government alike that Parliament has a continuing role in monitoring, scrutinizing, and affirming the continued effectiveness of legislation, and is not simply a trigger that requires to be pulled in order to allow legislation to be passed in the first place. With that in mind, I would have liked this chapter to be a good deal longer than it is. Tantalizing reference to the relationship between sunset clauses and experimental legislation, for example, require to be expanded and taken in the context of other experimental legislative techniques, which are certainly becoming more accepted very fast in the United Kingdom and are a very significant issue in a separation of powers context. Similarly, the proposition that the less independent the legislature, the more possibilities for the executive to reject the sunset clause amendment is clearly true, but equally it clearly fails even to scratch the surface of the kind of interdependence that is increasingly found between parliaments and governments, and the potential for sunset clauses and other legislative techniques both to develop and reflect the changing relationship. A simple comparison between the different concept of separation of powers in America and Britain is a good starting point, but should preface a much deeper analysis. Similarly, the chapter on sunset clauses and formal rule of law touches tantalizingly at one point on Treasury discussions about the role of sunset clauses in tax legislation and, having mentioned the relationship between sunset clauses and formal evaluation, fails to take this line of thought to its logical conclusion and make the links between the rise of compulsory post-legislative scrutiny—which to some extent owes its origins to European Union legislation—and sunset clauses. So is this book justified? Yes. Is it finished? No. I would very much like to see the doctoral thesis published in this book taken forward into a new edition that concentrates, in particular, on expanding the constitutional implications for the relationship between legislature and government. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

Journal

Statute Law ReviewOxford University Press

Published: May 30, 2018

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