This is a fast-moving issue and should be read as correct at the date of publication (20.03.20).
The Coronavirus Bill is a piece of emergency legislation. It grants extraordinary powers to assist the authorities in responding to the coronavirus pandemic and the threat of Covid-19.
The Bill contains a ‘sunset clause’. This means that the legislation will expire two years after the Bill is passed. Typically, a sunset clause is included where legislative measures are likely to be controversial but are deemed necessary to tackle a specific problem.
This Insight will explain what sunset clauses are, when they are typically used and the nature of the Coronavirus Bill sunset clause.
What is a sunset clause?
A sunset clause sets a time limit on legislation, whether an Act of Parliament or delegated legislation. It sets out that the legislation will expire at a specified point in the future. This has the same effect as repealing or revoking the legislation – it is no longer law, but anything done under it while it was law remains valid.
If the Government wishes to extend the legislation beyond that date it must enact new legislation. The requirement for fresh parliamentary approval may be ‘built-in’ to a sunset provision. It might require one or more votes to be taken in Parliament if an emergency law is to remain in force for a longer period.
What are sunset clauses for?
There is a risk that exceptional or emergency powers, granted for temporary purposes, can become ‘normalised’ over time.
If wide powers are granted by Parliament to Government at the outset, inaction or inertia could render those powers (semi)permanent. An ‘emergency’ situation may no longer apply, or the situation may have changed meaning that the original measures are no longer proportionate to the situation faced.
Sunset clauses let Parliament reassess the legislation at a later date: once it is clearer how it has been used in practice and how suitable it is to the policy challenge at hand.
In emergency scenarios it is sometimes necessary to legislate at speed. In the current situation the Coronavirus Bill is a response to a fast-evolving public health crisis. The Government believes that the measures contained in the Bill are urgently required.
A sunset clause is sometimes included in legislation in recognition of the short time available for debate. Instead of scrutinising the legislation at length now, MPs are reassured that the provisions are time limited. They will also have the opportunity to review their use later.
When will the sun set on the Coronavirus Bill?
The Coronavirus Bill has been introduced as a response to the Covid-19 outbreak. Its provisions are not intended to be permanent. As a result, its provisions are time limited by a sunset clause.
Section 75(1) of the Bill states that the legislation will expire after a two-year period from the date on which the Bill is passed. Section 75(3) allows a Government Minister to make “technical transitional, transitory and savings provisions,” if necessary to cover a period beyond the two years.
Section 76 of the Bill allows a “relevant national authority” to alter the expiry date for any provision of the Bill. The relevant national authority can bring the provisions to an end six months earlier or six months later than the two-year period provided for in section 75.
Who or what is a ‘relevant national authority’?
The Bill defines a relevant national authority as being:
- A Minister of the Crown – section 76(5)
- Welsh Ministers – section 76(7) – so far as the provisions affected extends to Wales
- Scottish Ministers – section 76 (9) – so far as the provisions affected extends to Scotland
- A Northern Ireland department is also a relevant national authority – section 76(11) – so far as the provisions affected extends to Northern Ireland.
How long should a sunset clause be?
Sunsets clauses vary in length. It might appear that shorter sunset clauses are preferable to longer periods, but that is not always true.
There are dangers associated with sunset clauses which are too short. Reviewing legislation after a period of only a year or two is “likely to be based on limited information about the operation of the legislation.” This risks understating the practical effects of the legislation and its impacts on fundamental human rights.
Section 21 of the Terrorism Prevention and Investigation Measures Act 2011 (TPIM) sets a five-year sunset provision. The Counter-Terrorism Review Project has been critical of the use of sunset clauses in the terrorism context. It notes that the review of the TPIM Act took just 32 minutes.
Sunset clauses are also an important safeguard in the Civil Contingencies Act 2004 against the excessive use of emergency regulations. That Act requires Government to lay emergency regulations made under it before Parliament as soon as practical and for Parliament to sit within five days of them being made. If, within seven days of them being laid regulations have not been approved by both Houses of Parliament, they lapse. Even if Parliament approves emergency regulations, they cannot have effect for more than 30 days, although the Government can make a fresh set of regulations when they expire.
An approach like this might present practical difficulties in the context of the current pandemic, especially if it is deemed unsafe for Parliament to sit when regulations need to be renewed. This may (in part) explain both why the Government has chosen to bring forward a bespoke Bill and why a longer sunset clause has been specified for the emergency provisions in it.
The Gilbert + Tobin Centre of Public Law at UNSW Australia has argued that sunset clauses should not include renewal mechanisms. They contend that the legislation should expire at the end of the period rather than remaining on the statute books to be revived in the future.
Sunset Clauses, Counter-Terrorism Review Project.
McGarrity, Gulati, Williams, Sunset Clauses in Australian Anti-Terror Laws (2012) 33 Adelaide Law Review.
About the author: Graeme Cowie is a researcher at the House of Commons Library, specialising in Parliament and the Constitution. Fergal Davis is the House of Commons Library Covid-19 Editor.