Why Would a Law Have an Expiry Date? Because Emergencies End and Powers Do Not

A clause of this kind states that the law, or a specified part of it, ceases to have effect on a given date unless positively renewed before then. The default is repeal, and inaction kills the provision rather than preserving it. That is the entire mechanism and its force comes from the reversal of the usual position, since an ordinary law continues indefinitely and removing it requires somebody to assemble a majority. Here the majority is required to keep it, which is a much harder thing to assemble for a measure that has become unpopular or obsolete.

Certain categories of legislation attract them repeatedly:

• •Emergency powers granted during a crisis
• •Counterterrorism measures that restrict ordinary liberties
• •Surveillance authorities, frequently renewed in blocks of years
• •Tax provisions and subsidies intended as temporary
• •Regulation of technologies that are changing fast
• •Compromise measures that could not otherwise pass at all

The provision is usually a price of passage rather than a considered piece of design. A government wanting emergency powers quickly can secure the votes of doubters by accepting an expiry, which lets those doubters support the measure without conceding it permanently. It also allows a genuinely uncertain measure to be tried, since the argument that something must be proved to work before becoming permanent is hard to refuse. And it offers a face-saving route for legislators who want to be seen acting decisively while limiting how long the consequences run.

Drafters aware of the weaknesses have tried to give the mechanism more force and the variants are instructive. Some require an independent review to be published before any renewal debate, which supplies evidence that would otherwise be absent. Some require a larger majority to renew than was needed to pass the measure originally. Some prohibit renewal by attaching it to unrelated legislation, forcing a standalone vote that can be scrutinised. Some stagger the expiry of different powers so they cannot all be renewed in one package. Each addresses a specific way the plain version has been observed to fail.

The record of these provisions in practice is discouraging and the reasons are consistent. Renewal debates tend to occur under time pressure, attached to other business, and voting against renewal can be presented as being soft on whatever the law addressed, which few legislators will risk. Agencies operating under the powers build systems and staffing around them, so lapsing becomes disruptive regardless of the merits. Emergency provisions introduced with expiry dates after 2001 in several countries were renewed repeatedly and in some cases made permanent. The mechanism shifts the burden of argument, which is real, and it does not remove the pressures that created the law.

An automatic expiry reverses the default, so a measure dies unless a majority is assembled to keep it rather than to remove it. They attach most often to emergency, surveillance and counterterrorism powers, usually as the price of getting a measure passed at all. In practice renewal debates are rushed and hard to vote against, and many such provisions have been renewed indefinitely.