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A thing set out in an Act of Parliament can be repealed and amended by another Act of Parliament.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.
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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.)
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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).
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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.
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