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Intricacies at the Implementation Level

(a) Disregard for participation of stakeholders

The lack of meaningful citizen participation or disregard for the input of stakeholders in the review process have also been regarded as noteworthy deficiencies of sunset clauses.[1] The latter was visible in the sunset review process of the Civil Aeronautics Board, where the criticism pointed out by citizens was not taken into account.[2] More recently, Michael Crain argued that sunset clauses have not achieved a significant level of public participation due to the lobbying activity of special interest groups.[3]

In the Netherlands, in the context of the Wientjes Commission,[4] representatives of different sectors were allowed to express their concerns as to the regulatory burdens imposed on companies and offer possible solutions. In Germany, it is unclear whether and how the participation of stakeholders is considered.[5] It is not clear from the literature on sunset clauses or on experimental legislation how the stakeholder’s input is taken into consideration and whether the objection based on the lack of meaningful participation is still valid.

In the above-described context, it is possible to refer to the intricacies of general consultations in the context of lawmaking. Consultations were originally conceived to allow minorities and groups with reduced democratic participation to have a say in the lawmaking process. However, the participation of stakeholders is not always meaningful: consultations are often captured by special interest groups which tend to be active participants in these processes; the influence of the stakeholders concerns mostly cosmetic revisions of the law or regulation and rarely affects the policy choices made.[6]

  • [1] Kearney, Sunset: A Survey and Analysis of the State Experience, n. 90above, 50, 55.
  • [2] Ibid. 50.
  • [3] Michael D. Crain, ‘Time for the Sun to Rise on Federal Sunset Legislation’ (2000) 8 Public Law 10, 13.
  • [4] See for example, Letter from the Commissie Regeldruk to the Ministerof Justice, Dr. E.M.H. Hirsch Ballin, 2 December 2008, available atwww.rijksoverheid.nl/documenten-en-publicaties/rapporten/2010/08/27/advies-commissie-wientjes-over-horizonbepalingen-in-wetgeving.html.
  • [5] Bertelsmann Stiftung, Sunset Legislation and Better Regulation, n. 59above, 21.
  • [6] Patricia Popelier, Rob van Gestel, Koen van Aeken, Vicky Verlinden andPeter van Humbeeck, Consultaties in de Wetgevingspraktijk: Een zoektocht naarinternationale best practices (Politeia, 2008) 132-5.
 
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