25th November 2020
Every so often the demand is made by a politician or someone in the media that a thing be ‘enshrined in law’.
The impression that they wish to promote is of absolute seriousness – that the thing will somehow be set out in law in a way that will ensure its preservation and enduring respect.
A super-duper way of using law.
But this is an untrue and misleading impression.
In the constitution of the United Kingdom, by reason of the doctrine of parliamentary supremacy, there is not a thing that can be ‘enshrined’ in law.
A thing set out in an Act of Parliament can be repealed and amended by another Act of Parliament.
Or a way can be found of frustrating or circumventing the statutory provision.
And often there is not even a need to repeal or amend, or to frustrate or circumvent, because there is no real enforcement mechanism for the enshrined thing.
The notion that a thing can be ‘enshrined in law’ is a fraud.
*
To take a topical example, the International Development (Official Development Assistance Target) Act 2015 provides for a statutory target of 0.7% of gross national income is sent on overseas aid.
Section 1(1) provides:
“It is the duty of the Secretary of State to ensure that the target for official development assistance (referred to in this Act as “ODA”) to amount to 0.7% of gross national income (in this Act referred to as “the 0.7% target”) is met by the United Kingdom in the year 2015 and each subsequent calendar year.”
Looks impressive.
But.
But what section 1 provides is weak even on the face of the Act, as section 2(3) provides wide exceptions:
“(a) economic circumstances and, in particular, any substantial change in gross national income;
(b) fiscal circumstances and, in particular, the likely impact of meeting the target on taxation, public spending and public borrowing;
(c) circumstances arising outside the United Kingdom.”
And if an exception is invoked, the consequence of not meeting the target is that the government must try to meet the target next year, and so on.
Yet even these exceptions do not matter…
…as section 3 explicitly robs the entire duty of any legal usefulness whatsoever:
“(1) The only means of securing accountability in relation to the duty in section 1 is that established by the provision in section 2 for the laying of a statement before Parliament.
(2) Accordingly, the fact that the duty in section 1 has not been, or will or may not be, complied with does not affect the lawfulness of anything done, or omitted to be done, by any person.”
The duty supposedly ‘enshrined in law’ expressly has no legal effect.
‘Enshrined not in law’ would be more accurate.
Yet politician after politician, and activist after activist, will parrot the line that the 0.7% spending commitment is ‘enshrined in law’ as if that actually means something in any legal sense.
(A similar thing happened with the various attempts to ‘enshrine’ in law the date of the departure of the United Kingdom from the European Union.)
*
A possible defence of the term ‘enshrine in law’ may be that it is a mere turn-of-phrase – verbal filler for those in politics and the media.
But this defence does not wash.
The term is invariably used to raise false expectations as to whether a thing will have enhanced legal protection – and as such it is a fraudulent device, as it will not.
And it leads to statutes being enacted, such as the the International Development (Official Development Assistance Target) Act 2015 that are nothing other than glorified press releases – and this is a misuse, even an abuse, of law.
‘To enshrine in law’ is a phrase which usually means the law is to be used for a non-legal purpose so as to mislead voters and readers (or listeners or viewers, depending on the medium).
*
By reason of the doctrine of parliamentary supremacy, it is impossible to ‘enshrine’ anything in law in any meaningful way.
Entrenchment is not available.
And by reason of parliamentary drafting, it will often be that the supposedly enshrined thing has no legal consequence.
There should therefore be a general prohibition on politicians and those in the media misleading others with the fraudulent device of saying a thing can be ‘enshrined’ in law…
…if there was only some way of entrenching such a ban.
**
If you value the free-to-read and independent legal and policy commentary at this blog and at my Twitter account please do support through the Paypal box above.
Or by becoming a Patreon subscriber.
You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
**
Comments are welcome but pre-moderated, and so comments will not be published if irksome.
Thank you David. There should perhaps be a similar category for meaningless phrases like ‘single market access’, promised by Brexiters during the EU referendum and turning out to mean absolutely nothing.
I think that “to enshrine in law” be not a meaningless phrase at all. Given the implicit religious sense implied by the verb “to enshrine”, it passes the explicit message that the thing (an Act of Parliament, for instance) is given a sacred connotation that renders it inalterable – which of course is senseless.
There’s a War Memorial on the Dundee Law, I suppose it could be said it is enshrined *on* Law?
In these times of snappy headlines we may need to think inside the box to deal with the problem.
Perhaps a suitable penalty for those caught using such a fraudulent device would be to enshrine them in an appropriate receptacle.
Interesting thoughts. Taken to it’s logical conclusion then, no law or right could be said to be “set in stone” since a parliamentary majority minded to change it could do so. One assumes that criminal laws against rape and murder ought to be safe (but plainly, only by consent of parliament), but misconduct in public office and similar laws designed to constrain the behaviour of politicians and officials might be up for grabs if, say, a populist PM with a weak moral compass, a poor track record for respect for the law and a whopping commons majority were to ascend to power…
But what alternative phrase can be used? There is a desire to say, ‘This is more than just an aspiration, lots of effort has been put in to give this a more solid footing’. How can that be recognised? ‘A law has been enacted to support this objective.’ Or, ‘We changed the law to give this more weight.’ ‘We inscribed this in law.’
‘set out in law’
Although in the case of the 2015 Development Act ‘mentioned in law’ might be more appropriate.
‘Enshrined in law’ is only relevant for countries with Basic Laws which are hard to change.
‘Set out in law’ should be reserved for those things for which there is a legal remedy unless Parliament overturns the law.
‘Mentioned in law’ feels appropriate in a case where there is no legal remedy at all.
Fascinating, thank you. Time was when Parliamentary Counsel could be wheeled out to tell Ministers that drafting this kind of legislation took up valuable time and therefore money that couldn’t be spared. Nor could time be spared in Parliament. I remember this happening in the early 1970s.
The ascendancy of Government over Parliament and enthusiasm of Ministers for gesture politics brought this to an end.
“Enshrined in law” can provide no guarantee, just as the manifesto commitment on which this Govt was elected:
[“We will proudly maintain our commitment to spend 0.7 per cent of GNI on development, and do more to help countries receiving aid become self-sufficient.”] provides no guarantee that they will do what they promise.
But having the 0.7% commitment in law was still a good idea. It has made it harder to abandon the commitment; it will require a debate in Parliament and a vote; and it was a way of signalling how serious the Govt was about the 0.7% target at the time (which was applauded internationally). I don’t believe it was a cynical political ploy – but a sincere statement of good intention; and
“enshrining it in law” was the best way of signalling that.
This seems like another example of legislators thinking that legislation is the answer: that something changes automatically when a law is passed, without thinking about or providing for implementation. (The adage about hammers and nails comes to mind; or indeed willing ends but not means.)
So for example laws criminalising murder and theft do not set out mechanisms to prevent those crimes from happening, but rather mandate legal consequences if they do take place (assuming our police and prosecutors and courts have the resources they need: another problem of willing ends without means).
This legislation requires the minister to “ensure” the 0.7% spending target is met, but does not provide for a mechanism to do so. Instead, if the minister fails, they must make a statement (oh no!) and the statute provides a series of baked-in excuses. And that is it. No penalties for breach of a statutory duty. So this is all hot air. A pie crust promise: easily made, easily broken.
Alongside “enshrining”, there is also the peculiar practice of what could be termed “memorialising” in law – the sprouting of proposals for eponymous laws addressing narrow legal issues relevant to the death of a particular person: Rod’s Law, Jane’s Law, Freddy’s Law.
The vagueness of the Act is a result of the fact that it came from a Private Members Bill. It was passed during the coalition government where there were different views on the subject amongst the governing parties – the 0.7% commitment was in the Liberal Democrat manifesto; the Conservatives were less keen.
The result was a compromise – better than nothing, but not as definitive as you would normally expect from legislation. The Act is a good example of the interface between law, politics and morality.
“better than nothing”?
Legally, by reason of section 3, it is nothing.
The Lib Dems who wanted [x] and the Tories who did not compromised on the Lib Dems not getting [x] but being able to pretend that they did
Definitely something in political terms – but, you are right, less in legal terms.
The bottom line is that there have been five years of providing 0.7% (which isn’t nothing) and even now the government isn’t going to repeal the law, just use it’s flexibility on a “temporary” basis.
In fact you could argue that the 0.7% target looks stronger now than it ever has – even in these most extreme circumstances a Conservative government doesn’t feel able to get rid of it (see opposition from their own MPs, Archbishop of Canterbury etc.).
Surely this all illustrates that while it isn’t _legally_ difficult for a Government with a majority to repeal laws, it is politically difficult for them to do so.
The Athenians did have a means of enshrining in law – it was called the graphe para nomon – and it provided for anyone who brought an illegal proposal before the Assembly to be prosecuted. This gave teeth to provisions such as those protecting the theoric or festival fund. As is suggested in the article one could always go through a laborious process of repealing a protection – this is what Demosthenes proposed in the Olynthiacs – but he was notably careful to be very precise as to what he proposed. The graphe para nomon clearly had teeth.
The underlying problem was captured by G K Chesterton when he commented that it is shocking how few politicians are hanged. The only way of keeping the brutes in order is to impose punishments “so memorable because so terrible that future generations will never cease to tremble.”
Someone needs to let Peers know:
“Peers seek to enshrine human rights in post brexit trade bill”
https://www.theguardian.com/politics/2020/dec/04/peers-seek-to-enshrine-human-rights-in-post-brexit-trade-bill
This came to mind when I alighted upon s.38 of the European Union (Withdrawal Agreement) Act 2020.
https://www.legislation.gov.uk/ukpga/2020/1/section/38/enacted
“38(1) It is recognised that the Parliament of the United Kingdom is sovereign.
(2) In particular, its sovereignty subsists notwithstanding [stuff relating to EU law, but unrelated to whether parliament is sovereign or not]
(3) Accordingly, nothing in this Act derogates from the sovereignty of the Parliament of the United Kingdom.”
What kind of nonsense is that? “I *am* sovereign,” shouted the Red Queen furiously, stamping her foot. “Off with their heads!”