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.
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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