Ed Barton, LLM, CPA, CFA

Temporal Extent of Legislation

Legislation exists at a particular place and time and for a particular purpose. Here we will explore the time elements of legislation and discuss:

  • When a statute comes into being
  • When a statute comes into force
  • How long a statute lasts
  • How does a statute end
  • To what time period does the statute apply

Life Cycle of Legislation

Legislation has a predictable lifecycle:

  • Before it is made
  • The process of being made
  • Commencement
  • The period when it is in force
  • Expiration
  • The period after it expires

Legislation Before It Is Made

Legislation starts as a policy idea that evolves into a policy proposal.  After that policy proposal is fleshed out, a legislative drafter converts the policy proposal into a draft piece of legislation.  This draft piece of legislation, or bill, is circulated broadly within and outside government for consultation, review, and comment. It then goes through the official process of legislation, including introduction into the legislature.

Some jurisdictions have an exception to this process for tax legislation. In some cases, the tax legislation will be backdated to take effect as of the day it was announced instead of enacted.  This is to prevent tax planning or tax evasion during the legislative process.

Making Legislation

Each jurisdiction has its own process for making a bill a law.  Many folks of my generation recall with fondness “Schoolhouse Rock” where a bill becomes a law:

The normal process is that a bill completes all stages in the legislative assembly before the relevant executive signs it. The process for subordinate legislation is generally made through a designated rulemaking process.

Legislation After It Is Made But Before It Is Commenced

Once legislation is made, it becomes law.  However, it has no legal effect until it is commenced.  Commencement is the date and time when the bill comes into effect and must be obeyed like law.  During this limbo period, the government may take preparatory activities, appoint officials, hire staff, secure resources, and promulgate the information.

Commencement

Commencement is the process that makes a piece of legislation legally effective.  This is also known as the date a law comes into force. A law can commence based on four general triggers, set at the time of passage:

  • upon making
  • upon a specified date in the Act
  • upon a specified date set in subordinate legislation
  • upon publication

It is common for US legislation to be made effective on a set date in the primary legislation or upon publication for subordinate legislation (regulation or rulemaking).

Under the US Constitution, legislation should not be given a commencement date earlier than the date upon which legislation is made before it is published or too quickly after being published. The goal is to ensure compliance, not “gotcha” citizens.

Expiration

Legislation generally continues until there is an intervention to bring it to an end.  There are five general ways an Act ends:

  • Express repeal (should include a repeal schedule and have the Acts repealed in the body of the act in best practice)
  • Implied repeal (should be avoided)
  • Sunset clause (includes time-bound, review clauses, and pilot provisions)
  • Desuetude (disuse)
  • Obsolescence (lack of practical effect)

Post Expiration

Generally, if repealed, the law ceases to affect as of the date of the repeal. It may still be enforced if the law was broken before effective repeal, and generally, repeals are not retrospective.

Prospectivity & Retrospectivity

Generally, legislation is prospective – it applies from the point it is made forward.  It looks to the future, not to the past.

Retrospectivity is backward-facing legislation and is generally prohibited under the US Constitution.  It is unfair to penalize someone for something that was not illegal at the time it was done. The principal purpose of regulation is to regulate human conduct, and retrospective laws do not do that. The precedence of retrospectivity creates uncertainly in that we cannot make rational decisions based on current law if there is a retrospective approach.

There are three ways to classify backward-facing legislation:

  • retroactive (looks to past and has a past effect)
  • retrospective (looks to past but affects the future)
  • legislation interfering with existing rights (has a substantial impact on current activity)

Retroactive criminal legislation is always impermissible. Some argue that war crimes and other “obvious” crimes at common law do not require statutes to enforce retrospectively.

Retroactive civil legislation’s permissibility is based on the right of property, and the rights infringed. In contrast, retroactive procedural legislation is more likely to be permissible, particularly if it protects or grants additional rights and benefits citizens.

 

 

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