The Emergency Coronavirus Bill demonstrates the value of Sunset Clauses



As the Government prepares to pass the Emergency Coronavirus Bill, giving itself the powers and flexibility it feels it needs to meet the challenge of COVID-19, one of my favourite legislative concepts is getting another airing: sunset clauses.

For those of you unfamiliar with the term, a sunset clause is a provision in a piece of legislation which provides that some or all of the law will lapse, unless pro-actively re-authorised, after a certain amount of time has passed. It ensures that temporary provisions really are temporary and forces legislators to re-visit past decisions.

It isn’t hard to see why MPs might be keen to insert such a provision into a bill granting the Government ‘emergency powers’ – they’ll have seen enough films to know that this is the part of the flashback where the bad guys get entrenched. Over on ConservativeHome my colleague, Charlotte Gill, has set out some of the provisions included in the Bill (many entirely commendable, from a small-state perspective) and why their impact ought to be scrutinised.

But I think we should go much further than that. If this epidemic is going to wreak long-standing changes on the way we do things in Britain, let one of them be making sunset clauses a much larger part of our legislative and policy-making processes.

One doesn’t need to cast one’s mind back far to see where such measures might have been useful. Grant Shapps’ proposal to use one to reverse the power of inertia on the subject of which EU regulations we keep post-Brexit was one. The Fixed-term Parliaments Act, which the Government has committed to repealing anyway, another.

But those are both still, in some ways, exceptional pieces of legislation. The real value of sunset clauses lies in their ability to counteract the “fire-and-forget” approach to regulation too often adopted by lawmakers and quangos.

Imagine if, when drawing up a new policy or prohibition, the Department in question were obliged to set out one or more yardsticks by which the policy could be assessed in one, two, or five years – with explicit criteria for failure too. The relevant Bill would be passed with a sunset clause mandating that Parliament revisit it in that time period. When the Act came up for renewal, MPs would be able to assess its real-world outcomes against its success and failure criteria.

Interestingly, back in 2015 the Health Select Committee suggested that their proposed sugar tax be subject to a sunset clause. However, their chosen metric – reducing sugar consumption, rather than cutting obesity – is obviously leading, and illustrates why one might want to go further.

A logical next step to regular sunset clauses could be to hand responsibility for the assessments (and even partial responsibility for drawing up the assessment criteria) to an independent Office for Policy Interrogation, taking it out of the hands of the ministers and officials whose reputations are on the line. Why should departments – or motivated lobbyists who lean on departments – get to mark their own homework?

Baking this mechanism for reflection and evidence-based assessment into the way Parliament legislates would give MPs and peers more time and opportunity to reflect on the outcomes of the things they vote for – and the press and public new, regular opportunities to hold the Government to account for its performance.

It won’t fix the problem of grandstanding MPs burdening the nation with ill-conceived regulations (in all likelihood nothing will) but it’s a good place to start.

Henry Hill is a journalist and commentator and Assistant Editor at Conservative Home. Follow him on twitter: @HCH_Hill