LONDON — In a week of shock waves for the United Kingdom’s development sector, an unclear path now lies ahead. On Thursday, Foreign Secretary Dominic Raab announced the government would be introducing new legislation to allow it to spend less on official development assistance.
This followed Chancellor Rishi Sunak’s announcement that the U.K. will not be spending 0.7% of gross national income on official development assistance, instead dropping the amount to 0.5% of GNI, amid the economic chaos caused by the COVID-19 pandemic.
But does the government really need to bring new legislation, and how much do we know about its plans? Devex asked the experts.
What does the current legislation say?
The key existing piece of legislation is the 2015 International Development (Official Development Assistance Target) Act, under which the responsible secretary of state has a “duty” to ensure that 0.7% of GNI is spent on ODA each year. The U.K. has met that target ever since its enactment.
However, the enforcement mechanisms for this are weak. Section 3 of the act states that if the duty “has not been, or will or may not be, complied with,” that “does not affect the lawfulness of anything done, or omitted to be done, by any person.”
The only penalty for failing to meet the target is that the minister responsible must “lay before Parliament a statement” explaining why. “If relevant,” the statement should “refer to the effect” of economic circumstances, fiscal circumstances, or circumstances arising outside the U.K. It should also set out what steps are being taken to ensure the target will be met the following year.
There is some debate over whether the act allows the government to intentionally miss the target and to declare those intentions in advance. Either way, legal commentator David Allen Green has argued that the accountability mechanism laid out in Section 3 “explicitly robs the entire duty of any legal usefulness whatsoever” and described the legislation as “a legal and constitutional con trick.”
Why, then, does the government want to change it?
The government says it intends to return to the 0.7% spending figure “when the fiscal situation allows” but has not specified what that means in practice. According to Raab, new legislation is needed because the government “can’t predict with certainty when the current fiscal circumstances will have sufficiently improved. … And [we] would almost certainly face legal challenge if we don’t carefully follow [the existing legislation].”
Some legal observers, including Celine Tan of Warwick Law School, have said there would be sufficient ground for a judicial review to be brought against the government under the 2015 act for its decision to reduce aid spending.
However, Devex understands lawyers familiar with government work are confident it would win such a legal challenge.
Given the existing flexibility in the law, there is speculation that the government wants to change the law to allow a permanent move away from the 0.7% target.
What do we know about the planned changes?
Not a lot. We know the government wants to ease its obligation to meet the 0.7% spending target, but we do not know what that will be replaced by.
There are fears that as well as the 2015 act, the government might seek to change the 2002 International Development Act. This is a separate piece of legislation specifying that ODA must be spent in a way that is “likely to contribute to a reduction in poverty.” Prime Minister Boris Johnson refused to rule out making changes to that law when asked about the issue in September.
That has aid campaigners nervous — especially after the government omitted poverty reduction as a key focus of its new aid strategy this week — because for them, it underpins the entire purpose of aid.
“We’d want to make sure that [2002 law] is not opened up when they do start fiddling around with legislation,” Alastair Russell, public affairs adviser at Save the Children, told Devex.
“What we want to do is ensure that ODA is better spent on serving the interests ... of the U.K. as well," the British prime minister said.
Tan has also said the government's new strategy for aid spending may be vulnerable to legal challenge under the 2002 act. The framework, which attempts to align development interests with the country’s strategic interests, may be incompatible with the objective of the 2002 IDA, which prioritizes poverty reduction in aid spending, according to Tan.
It would be possible for the government to bring “one piece of legislation which is both qualitative, like the 2002 [act], and quantitative, like the  target act,” according to Ambreena Manji, professor of land law and development at Cardiff University. “I have long thought the legal framework has been built bit by bit and is fragmented,” she added.
What happens next?
If the government wants to make changes, it will have to introduce new legislation for members of Parliament to vote on. There is currently no information on when this might happen.
While the government commands a strong majority in the House of Commons, it is not guaranteed to win the vote because of how contentious the decision to cut the aid budget was — many Conservative Party MPs have spoken openly against it, and Labour also opposes it. Devex understands that a parliamentary rebellion — where a contingent of Conservative MPs vote against the government — is a strong possibility, though it is far from certain whether it will succeed.
The strength of the rebellion could depend on what the government’s proposed legislation contains.