Rishi Sunak’s plan to cut foreign aid budget is ‘unlawful’, says senior former law officer

One of Britain’s most senior former law officers has served notice that Rishi Sunak’s plan to cut the aid budget is “unlawful” unless Parliament votes to change the law.

In a letter leaked to the Evening Standard, Lord Garnier said that the PM is under “a clear legal obligation” to uphold the binding target of spending 0.7 per cent of GDP on international development.

“Until Parliament changes that law on the statutory duty to meet the 0.7% target, the Government must aim to hit it,” he wrote in a letter to a committee of MPs.

The firm opinion by Lord Garnier, a former Solicitor General, is significant because it makes clear ministers must attempt to put a Bill through Parliament if they want to cut aid spending.

But that would put Boris Johnson at risk of a landmark defeat in a rebellion that is being masterminded by Andrew Mitchell, the well-connected former Conservative Chief Whip and International Development Secretary, a diehard supporter of the aid commitment.

Foreign Secretary Dominic Raab is certain to be quizzed about the letter when he gives evidence to the committee.

Writing to Sarah Champion, Labour chair of the International Development Select Committee, Lord Garnier said: “Until Parliament changes that law on the statutory duty to meet the 0.7% target the Government must aim to hit it.

“It cannot deliberately aim off or fire blanks. It can say it intends to change the law or substitute another target but, until the statute is repealed or amended, the Government is subject to that law.

“It cannot legitimise a failure to hit the target by announcing in advance its intention to fail.”

Chancellor Mr Sunak announced last year he intends to slash the overseas development budget by £4 billion.

Mr Mitchell commented today: “This is the only budget being proposed for a cut. It will decimate life-saving projects in the poorest countries of the world, yet it represents less than 1% of UK borrowing this year . The government should think again.”

The commitment to spend at least 0.7 per cent of earnings on aid was written into law in 2015 by the passing of the International Development (Official Development Assistance Target) Act.

Under the Act, the Government must make an annual statement on the previous year’s performance – and must by law make an effort to avoid any shortfall.

The letter in full

26/01/2021

Dear Chair,

Since the enactment of the International Development (Official Development Assistance Target) Act 2015 the Secretary of State for International Development, and now the Foreign, Commonwealth and Development Secretary, has been under a statutory legal duty to ensure that the United Kingdom hits the target of 0.7% of gross national income (GNI) for official development assistance every year.

The minister also has by law to make an annual statement to Parliament reporting on the previous year’s performance. If it turns out that the 0.7% target has been undershot the statement must retrospectively explain why, referring, if relevant, to the effect of changes in economic and fiscal circumstances, of any substantial change in GNI, and the likely impact of meeting the target on taxation, public spending and public borrowing, or to circumstances arising outside the United Kingdom.

Until Parliament changes that law on the statutory duty to meet the 0.7% target the Government must aim to hit it. It cannot deliberately aim off or fire blanks. It can say it intends to change the law or substitute another target but, until the statute is repealed or amended, the Government is subject to that law. It cannot legitimise a failure to hit the target by announcing in advance its intention to fail.

The Government of course knows this. On the day of the recent Spending Review the Chancellor told the House of Commons that, since the Government cannot predict with sufficient certainty what the fiscal circumstances will be, they will have to legislate to change the law. The Foreign Secretary said the same thing from the Dispatch Box the very next day. FCOD minister Lord Ahmad recognised those obligations in the House of Lords and expressed the Government’s intention to remain within the law.

Whilst accepting that for the Foreign Secretary deliberately to breach his statutory duty to meet the 0.7% target will not lead to his prosecution, it would nonetheless be unlawful and something for which he could be held to account by Parliament. It would do neither his reputation as a lawyer nor the Government’s domestic or international standing any good to be seen once again to be flouting a clear legal obligation. What happened with the botched prorogation in 2019 or the Internal Market Bill in 2020 are not happy precedents.

If the Government disagrees with Prime Ministers May, Cameron, Brown and Blair, and is not concerned about sacrificing the UK’s “moral authority”; breaking “a promise we don’t need to break”; “presiding over the G7 whilst breaking one promise to meet another”; or whether the 0.7% target is “enlightened self-interest”, the way forward is clear. It should change the law through Parliament, not break it out of convenience.

Yours faithfully,

Lord Garnier

Solicitor General, 2010-2012

House of Lords, London SW1A 0PW

“The Government of course knows this,” wrote Lord Garnier. Although Mr Raab would not be prosecuted if he allowed aid spending to fall, the peer warned: “ It would do neither his reputation as a lawyer nor the Government’s domestic or international standing any good to be seen once again to be flouting a clear legal obligation.”

The peer recalled how Mr Johnson was forced into U-turns after trying to unlawfully shut down parliament in 2019, and then the outcry when he threatened to break international law during Brexit negotiations. “What happened with the botched Prorogation in 2019 or the Internal Market Bill in 2020 are not happy precedents,” he said.

David Davis, the former Brexit Secretary, is among other “big beast” Tories who are opposing the cut. Writing in the Standard recently, he said it would be “illogical and immoral”.

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