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Temporary Rules

Sunset clauses and experimental laws and regulations are not necessarily ‘last resort’ instruments. Moreover, they can in principle be enacted in most fields of law as long as the underlying problem or situation to be regulated is characterized by uncertainty, potential risks, lack of information, rapid mutations and/or requires a rapid and flexible legislative response. Typical examples include the regulation of telecommunications, complex societal phenomena and emerging technologies. As explained in Chapter 2, sunset clauses and experimental legislation may serve different functions. Therefore, on the grounds of the qualification of the problem to be regulated, the legislator must decide on whether (a) sunset clauses or (b) experimental legislation should be chosen. Since emergency legislation is excluded from the scope of this study (see Chapter 1), no reference will be made to this type of situations.

(a) Sunset clauses

Sunset clauses are particularly suitable as a response to rapidly changing fields or circumstances which justify the extinction of the legal regime to be enacted or its significant review. In the case of sunset clauses, the legislator regards the dispositions to be enacted as merely temporary. In some cases, sunset clauses can also be put at the service of ‘learning’ or ‘consensus-finding’ functions (see Chapter 2), and be used as alternatives to lasting legislation. This occurs when the legislator is afraid that the situation to be regulated is temporary; or that the current lack of consensus might be resolved in light of new evidence. In any of these conceivable scenarios, the concepts of termination and legislative oversight should underlie sunset clauses. When sunset clauses are chosen for these two mentioned purposes, the line between this instrument and experimental legislation can be extremely difficult to draw. As explained in Chapter 2, sunset clauses can be put at the service of a number of objectives. The termination of agencies that are no longer required; the extinction of obsolete regulations; responding to temporary problems; or gathering political or social consensus are some of the functions which may be fulfilled by sunset clauses (see Chapter 2). All of them have a common ground: sunset clauses respond to the need to ‘unburden’ the legal order of rules that no longer fulfil their original goals in an effective or efficient way. In conclusion, sunset clauses should be used when the legislator can foresee the need to terminate a rule or a number of rules in a short period of time. The legislator’s prediction should be based, for example, on consultations and/or ex ante evaluations.

The enactment of sunset clauses implies a clear framework characterized by transparency and accountability. Legislators should be explicit as to (a) the goals of the sunset clause (in other words, why the disposition should be terminated); (b) the duration of the sunset clause; (c) grounds of reauthorization; (d) evaluation criteria and, if applicable, the composition of an evaluation or sunset commission. Watching the sun set at a distance should not be the legislator’s goal: contributing to a more colourful sunrise of tomorrow’s laws should be.

 
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