Sunset Clauses and Counterterrorism Legislation

Abstract

This article examines “sunset clauses”, legal provisions that provide for the expiry of a law or part of a law at a later date. Sunset clauses have often featured in post-9/11 counterterrorism legislation, and are commonly considered to be a safeguard against panicked and ill-conceived legislation. The purpose of this article is to evaluate whether this claim is borne out by experience.The article sketches a brief history of the use of sunset clauses in general and in the specific context of the counterterrorism legislation of the United States, the United Kingdom and Canada. It then considers whether sunset clauses are substantively or procedurally effective by looking at whether they actually led to the expiry of certain legislative provisions or meaningful legislative reconsideration of those provisions. The article contends that the record of sunset clauses is mixed, but that sunset clauses, if appropriately drafted and tied to other accountability mechanisms, still have value.