14th July 2021
Yesterday there was this stunning tweet from Lord Falconer, the experienced QC and a former lord chancellor – and now a Labour spokesperson.
The government today just amended an absolute duty on it contained in an Act of Parliament by a motion in the Commons. They did not amend the Act. They simply used their Commons majority to override the law.
— Charlie Falconer (@LordCFalconer) July 13, 2021
There are many things to be said about the government’s decision on this – for example there is what former prime minister John Major said:
No punches pulled pic.twitter.com/GEytz2toO5
— robert shrimsley (@robertshrimsley) July 13, 2021
There is nothing positive to say about this illiberal and misconceived decision, and it should be opposed by every sensible person.
But what Falconer said appears incorrect – either in the head tweet or taking the thread as a whole.
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The correct position, as has been previously set out on this blog, is that the obligation under the International Development (Official Development Assistance Target) Act 2015 is not an absolute obligation.
The act provides for a statutory target of 0.7% of gross national income is sent on overseas aid – but this has no legal force and is certainly not absolute.
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.”
Section 1(1) is subject to wide wide exceptions in section 2(3):
“(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.”
In view of these exceptions, the section 1 cannot be called ‘absolute’.
*
To take advantage of an exception, the government has to lay a statement before parliament.
This is set out in section 2 of the act, which – of course – as much a part of the legislation as section 1.
And that is what the government did yesterday – the statement is here, and it states:
‘The government will continue to act compatibly with the International Development (Official Development Assistance Target) Act 2015, under which accountability is to Parliament. The Secretary of State will lay a statement in Parliament in accordance with section 2 of the Act in relation to each calendar year in which the government does not spend 0.7% GNI on ODA.’
*
The legal problem with the international aid cut is not directly with what the government did – for they have complied with the act.
The problem is with the sloppy drafting of the legislation, which makes the target obligation nothing more than a nice-to-have.
The public understanding of law is a valuable but fragile thing and such misleading comments undermine the public understanding of law.
The correct response to sloppy legislation is not sloppy commentary.
*
As a post script, even the section 2 exceptions do not really 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.”
What a useless piece of legislation.
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Fascinating. Many of us have a belief that parliamentary draftsmen never get it wrong. So is this bad drafting, or a malevolent instruction to the draftsmen back in 2015?
To refer to ‘sloppy drafting of the legislation’ is impliedly unfair on those who drafted it — the civil servants, instructing solicitors and Parliamentary Counsel. The legislation no doubt does exactly what Ministers intended and wanted it to do. If so, the officials who drafted it discharged their duty perfectly.
The Act is, in any case, a first-class example of vanity legislation. If Ministers want to commit to a target for spending, or anything else, they should submit themselves to accountability before Parliament — it doesn’t need legislation to achieve that, and legislation of this kind adds nothing but a spurious veneer along the lines of ‘We’ve legislated, so we really must mean what we say/we’ve discharged our manifesto commitment/we can’t reverse it [though untrue]’ (delete as applicable).
This isn’t just a Tory thing: see for example the Anti-Slavery Day Act 2010: admirable aims, but what does the enactment uniquely achieve?
On the genesis of this legislation, as I understand it, the International Development (Official Development Assistance Target) Act 2015 was a private members bill introduced by Lib Dem (and former Secretary of State for Scotland) Michael Moore, after he came second in the ballot in the last year of the 2010-2015 coalition.
The bill seems to have secured cross-party support – all three parties had a manifesto commitment in 2010 to legislate for the 0.7% target or ahem “enshrine” it – and perhaps more importantly government backing, with only six votes against on second reading and five on third reading, including (both times) Philip Hollobone, Edward Leigh, and Jacob Rees-Mogg, joined variously by James Gray, Adam Holloway, Gerald Howarth, David Nuttall, and Mark Reckless. No doubt they’d all rather have pushed through Bob Neill’s EU referendum bill, which did not get out of committee.
* https://bills.parliament.uk/bills/1413
* https://www.bbc.co.uk/news/uk-politics-28134105
Here is what the three main parties said in 2010:
* “[We] will be fully committed to achieving, by 2013, the UN target of spending 0.7 per cent of national income as aid. … We will legislate in the first session of a new Parliament to lock in this level of spending for every year from 2013.”
* “We remain committed to spending 0.7 per cent of national income on aid from 2013, and we will enshrine this commitment in law early in the next Parliament.”
* “[We] will: Increase the UK’s aid budget to reach the UN target of 0.7 per cent of GNI by 2013 and enshrine that target in law.”
It was even a commitment in the coalition’s programme for government:
* “We will honour our commitment to spend 0.7% of GNI on overseas aid from 2013, and to enshrine this commitment in law.”
None of them did what they said, of course: the legislation wasn’t enacted until 2015.
More to the point, here is what the Conservatives said in their 2019 general election manifesto: “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.”
Are they just as proud now?
So the drafters of the legislation and the Parliament that approved it in 2015 appear to be as culpable of bad faith as the current government and the MPs who did not oppose the statement.
The Conservatives have a history of passing laws to “lock in” a manifesto commitment and then need to find ways to not comply. Drafting a law in a loose way so it can be circumvented is a convenient way for this to be done. As a result such so called locks are a futile and empty gesture. If a government is committed to a policy, whether it is overseas aid or pensions increases then it doesn’t need to pass a law to bind itself to it.
A lesser known (besides to Quakers) section of the Sermon on the Mount calls out this particular species of bullshit, or rather the closely related species of oaths. They’re another way to pretend to make a promise binding by a means that can easily be bypassed.
How did such legislation actually get passed in the Parliament? Or can I surmise that great majority of Conservative MPs act in sheep like manner and just follow what they are gold?
Unfortunately the public view of the law is of two sides trying to get the better of each other. My wife is fond of saying ‘but is it against the law’ and I, as a non lawyer, say ‘I’m sure it’s more complicated than that’. But your tweet announcing the imminent posting was an excellent teaser.
I’m not sure I fully understand the Parliamentary choreography that took place, but it appears that what happened in Parliament was:
1) The government laid a statement before parliament to take advantage of an exception (as described above);
2) The government put a motion which said, if that motion was lost, it would return to spending 0.7% in the next calendar year, but if passed, it would give licence to continue to spend less than 0.7% in future years unless various conditions are met;
3) The motion was passed.
So, the Act remains, and the process for taking advantage of an exception remains;
This year, along with their statement, the government allowed a debate which (had they lost) they would have kept aid at 0.7% in “the next calendar year” [I’m not sure what the consequence is for 2021];
But, having won, in future years if conditions aren’t met the government may be able to simply lay a statement explaining why they haven’t met the 0.7%, but might disallow debate because they explained it this time.
I’d be grateful to know if that understanding seems correct.
It is clearly not useless as far as the Government is concerned, since it is useful in justifying the will to make such efforts whilst it is convenient, and also useful in backing away when money and spirit are tight. The Government, it seems, lives off targets, often missed, than are used to justify some actions, not always consistent, and to avoid penalty for missing targets. Missing Penalties apparently gets more approbrium than missing such targets, alas.
A niggardly act in line with the current Tory xenophobic rabble-rousing but not unexpected from a government that survives on optics, how can they continue to justify their current stance on immigration while shipping money overseas to those very immigrants and while it was never a nail to the wall duty on the UK government it was certainly one that did neither the UK nor the recipients any harm.
Excellent, thanks very much for putting this right. Lord Falconer’s Twitter thread alarmed me even more than the government’s disingenuous manouevres to defeat the principled and well founded opposition to this dreadful measure. But also disappointing that Lord Falconer has apparently been as you say so sloppy in his response.
I think some of the criticism of the Act is excessive. While David has often correctly pointed out ‘enshrining something in law’ is meaningless, this Act has achieved something, albeit not very much. It has brought some embarrassment to the government, as it has at least had to state explicitly what it is doing. Accordingly, it couldn’t sneak this mean-spirited cut under the radar.
I was once told the reason legislation took so long was the effort needed to build in and hide all the loopholes. Surely any government would be stupid if it made legislation affecting itself watertight. Wriggle room is so handy.
Still, all those free Landrovers and medicines and kit are free advertising. If we don’t someone else will. And 0.7% is not much, a bit like a £100k lawyer begrudging a measly £700 to charity.
The real reason is to get ahead of the big hikes in petrol, gas and leccy and food yet to come. To say nothing of Rishy wanting to replenish his coffers. A billion here, a billion there – pretty soon you are talking real money – and votes.
I don’t think that the 2015 legislation was “sloppy” at all; I think it was deliberately worded to indeed make the legislation “useless”. The 2015 Act was designed to make the UK look good, and capture a few progressive voters, without any real long term commitment.