Thread by @LordCFalconer

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.

The law is now contained not in the Act of Parliament but in a Written Ministerial Statement of the Treasury which overrides the Act and is probably enforceable by judicial review.

The government have turned the supremacy of Parliament which has conventionally meant supremacy expressed by legislation into supremacy expressed through government motion. This means in practice the supremacy of the executive.

What happened today has huge significance for those dependent on U.K. Aid. It also has very significant constitutional implications. Primary legislation trumped by government fiat. Truly an elected dictatorship.

It’s worth setting out the facts.

The International Development (Official Development Assistance Target) Act 2015 provides in s1

It is the duty of Sec of State to ensure the target for official development assistance [of ] 0.7% of gross national income is met by the U.K. in 2015 and each subsequent year.

The Commons today (13/7/21) passed the following motion: That this House has considered the Written Ministerial Statement relating to Treasury Update on International Aid, which was made to the House on Monday 12 July.

The Chancellor made clear in the debate that if the House voted against the motion it is an effective vote and the govt would return, irrespective of the circumstances, to 0.7% next year.

If on the other hand the Commons agreed the motion, as they did, the government were clear they would no longer comply with s1 of the statute but instead with the terms of Monday’s written statement.

That statement provided that the government commits to the 0.7 target only when the independent Office for Budget Responsibility’s fiscal forecast[1] confirms that, on a sustainable basis, we are not borrowing for day-to-day spending[2] and underlying debt[3] is falling.

There is nothing in the Act which allows the govt to be relieved from the duty to meet the 0.7 target every year from 2015.

It would have been open to the government to introduce legislation to amend the Act.

They did not do this. Instead they purported to amend the obligation in s1 of the Act by the motion.

The government is now proceeding on the basis the ministerial statement of 12/7 as it amends s1 of the Act sets out the legal obligation of the government.

They feel emboldened to amend a provision of primary legislation by a motion because the Act says in s3 : 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 Act envisaged accountability for compliance with the Act to be by statements to Parliament.

That accountability was to be by Parliamentary statement is a million constitutional miles from saying the Act can be amended by parliamentary statement.

But that is what just happened this afternoon. It’s constitutionally unprecedented. It means that the ministerial statement of 12/7 is enforceable by judicial review whereas the Act is not.

And it has set a precedent which will be cited again and again there are some Acts of Parliament which impose duties on governments which, if the govt can persuade majority of Commons by motion it’s too difficult to comply, the duty can be ignored.