[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Alan Greene reviews Antonios Kouroutakis’s book on The Constitutional Value of Sunset Clauses (Routledge 2017)]
—Alan Greene, Assistant Professor, Durham Law School
Constitutions should evoke ideas of stability, inertia, and permanence. They are often an attempt to reassure and establish certainty that often emerge from the ashes of turbulent revolutions. In a fascinating new monograph, Antonios E. Kouroutakis details how the very opposite of permanent legal norms—legislation made temporary through the use of sunset clauses— have shaped these constitutional institutions and the means through which they interact with each other over time.
Temporary Legislation and Controlling the Executive
The Constitutional Value of Sunset Clauses consists of four parts: Part I is a single chapter outlining a positivist analysis of sunset clauses; Part II details an historical overview of sunset clauses; Part III analyses the institutional impact of sunset clauses; and Part IV discusses sunset clauses and the rule of law.
The Constitutional Value of Sunset Clauses focuses almost exclusively on the British constitutional order and, indeed, it is in documenting and analysing the historical origins of the use of sunset clauses in England that Kouroutakis is at his best. Chapter 2, 3 and 4 detail the use of sunset clauses in the UK from the medieval period to the English Civil War and into the era of parliamentary sovereignty and today. Throughout this fascinating journey, Kouroutakis argues that sunset clauses were a vital component in the tug-of-war between Parliament and the Crown. What may, prima facie, appear to be technical wrangling over banal regulations such whether to confer the freedom to trade throughout England upon all merchants both English and alien’ or regarding merchants at Ipswich and Yarmouth and ‘the passage of wool, hides and woolfells’ are actually profound questions of constitutional importance. Kouroutakis reveals that these contestations are actually early attempts by Parliament to secure binding commitments from the Crown and, in turn, secure for individuals the certainty provided by the rule of law necessary to successfully conduct and regulate their own behaviour. At the same time, Kouroutakis argues that sunset clauses reassured the Crown that this was only temporary and wholly at his consent. Sunset clauses therefore played a pivotal and until now an under-examined role in the evolution of the British Constitutional order which Kouroutakis expertly and persuasively establishes through his rigorous use of different primary and secondary historical sources.
Inevitably, a book of this breadth and ambition will leave certain points open for further development and it is in the second part of the monograph concerning the normative implications of sunset clauses that a number of interesting questions which Kouroutakis raises could be elaborated upon further. For example, the role sunset clauses can play in fostering a dialogue between the various branches of government, while intriguing, could also be developed further.
Sunset Clauses and Executive Dominance
Kouroutakis is keen to point out that sunset clauses are about far more than counter-terrorist legislation, for example their use as a means of experimenting with novel solutions in a variety of different policy areas. Nevertheless, the spectre of emergency is never far away with Cicero’s warning of ‘salus populi suprema lex esto’ echoed on numerous pages. This is particularly the case towards the latter stages of the book. In this regard, while Kouroutakis does highlight the concerns of many regarding the entrenchment of so-called permanent legislation, more attention could be devoted to the fundamental challenges this poses for the accommodation model of confronting emergencies and, indeed the constitutional order in general. In this regard, in Chapter One, refers to the Roman Dictatorship as a constitutional institution of the Empire rather than one of the Roman Republic. Indeed, it was the abuse of the office of the temporary office of Dictatorship and its resurrection as a sham title by Gaius Julius Caesar that ultimately led from the Republic to Dictatorship. The distinction between the Roman Empire and the Roman Republic is fundamental to understanding the dangers of apparently temporary legal changes.
In addition, while Kouroutakis explains well the key formal distinctions between a sunset clause and clauses requiring renewal through the use of so-called Henry VIII clauses, more analysis could be given to the actual substantive quality of the debates under the former. For example, while the Patriot Act is referred to and, in particular, Hillary Clinton’s concerns, Kouroutakis declines to mention that 14 of the 16 provisions originally scheduled to sunset were made permanent in 2005. While Kouroutakis does indeed refer to the fact that these debates may ultimately be lacking, this particular aspect of sunset clauses is certainly rife for further exploration. Notwithstanding this, however, Kouroutakis’ discussion of Henry VIII clauses and temporary legislation may become increasingly relevant as the UK attempts to untangle itself from EU norms following Brexit negotiations. and focus turns on the increasingly vexed relation between Parliament and the Government. These minor issues should not, however, detract from the overall value that the book contributes to the literature.
In so doing, Kouroutakis brings his monograph full circle, from the use of sunset clauses by Parliament to gradually wrest power away from the Crown, to the more common scenario today of Parliament temporarily conferring ‘exceptional’ powers on the executive. What Kouroutakis ultimately reveals is that even if the legal norms in question do end up sunsetting, they can leave a permanent mark on the constitutional landscape by setting new examples for future law-making and, more importantly, recalibrating the relationship between the legislature and the executive. Consequently, the comforting promise of temporariness should be viewed as anything but. The Constitutional Value of Sunset Clauses thus establishes Kouroutakis as a leading voice in this area and well-placed to advance our understanding of sunset clauses further. It is a valuable addition to the literature and a must for anybody interested in the relation between constitutional norms and time.
Suggested Citation: Alan Greene, Review of Antonios Kouroutakis’s “The Constitutional Value of Sunset Clauses”, Int’l J. Const. L. Blog, July 11, 2017, at: http://www.iconnectblog.com/2017/06/book-review-alan-greene-on-antonios-kouroutakiss-the-constitutional-value-of-sunset-clauses