4 Accountability
measures
27. We now turn to consider the accountability
measures in the draft Bill. Clause 2 sets out the requirement
for the Secretary of State to demonstrate his compliance with
the Act in his Annual Report. Where the Annual Report shows that
the target has not been met, the draft Bill says that the Secretary
of State should lay a statement before Parliament "as soon
as reasonably practicable after laying the report". Subsection
(3) specifies that the statement must explain why the target has
not been met and, if relevant:
[...] refer to the effect of one or more of the following—a)
economic circumstances and, in particular any substantial change
in GNI; 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.[47]
The statement should also describe any steps the
Secretary of State has taken to ensure that the target will be
met the following year.
Laying a statement before Parliament
28. The requirement to lay a statement before
Parliament is not in itself unusual. However witnesses have commented
that making explicit reference to economic, fiscal or external
circumstances as reasons for failure to meet the target weakens
the Bill. UK Aid Network believed that suggesting reasons for
failure on the face of the Bill would make it harder for commentators
to argue that this is not a sufficient justification for non-compliance.[48]
Oxfam argued that the obligation to meet the target should stand
regardless of extenuating circumstances.[49]
Results UK also shared this view saying "that language in
the Bill should not seek to legitimise, or pre-empt, a failure
to meet the 0.7% target."[50]
CAFOD commented that any failure to meet the target would be a
political decision since the target was a percentage of GNI which
already allowed for fluctuations in economic performance:
We are concerned that if the Secretary of State is
encouraged to explain any failure to meet the target specifically
in terms of economic, fiscal and external factors, then those
factors may be seen to legitimate such a failure. Given that the
spending target is a percentage of national income, it should
be no more difficult to achieve in periods of recession than those
of economic growth—when the UK's income is low, the target
would be proportionately smaller. Removing the reference to economic,
fiscal and external factors would encourage the Secretary of State
to make explicit the political priorities behind a decision not
to meet the target.[51]
29. Christian Aid agreed and thus recommended
that "In order to take compliance with the Bill more seriously,
it will be important to remove all reference to these factors
which would explain why the target has not been met".[52]
Government officials told us that the reason for including these
factors was to provide an indication of the type of report the
Secretary of State would have to make to Parliament in the event
that the target was not met.[53]
30. We believe that the draft
Bill is weakened by its reference to economic, fiscal or external
circumstances as possible reasons for missing the target. If the
target becomes law, it should be expected that it will be met
each year by the Government. Should the target not be met, a robust
explanation of this failure would be expected by Parliament. The
Bill should not try to pre-empt or legitimise failure by including
a list of acceptable reasons for missing the target. We recommend
removing the references in Clause 2 (3) to economic, fiscal and
external circumstances.
AN ACTION PLAN
31. Clause 2 (4) of the draft Bill states that
the Secretary of State must "outline any steps that
the Secretary of State has taken to ensure the 0.7% target will
be met by the United Kingdom in the calendar year following the
report year in which the target has been missed" [emphasis
added]. A number of NGOs have commented that the wording should
be more explicit about exactly what would be required of the Government
should the target be missed.[54]
Christian Aid argued:
This is not sufficient to ensure that there is a
plan to achieve the target in the next year. With this statement
it is easy to simply not take any steps towards next year's target,
and in that case not report any steps taken. Instead, clause
2(4) should read "outline the steps that the Secretary of
State has taken to ensure that the 0.7% target will be met".
This, in our view, would make it necessary to demonstrate
an action plan to ensure that the target will be met the following
year.[55]
32. In contrast to this draft Bill, the Child
Poverty Bill contains both a duty to meet targets, and
a duty to lay before Parliament detailed strategies setting out
the measures the Government will take to comply with the duty
to meet the targets.[56]
We asked the Government about the difference between the two proposals
and why there is no requirement for a more detailed action plan
in this draft Bill. The Minister told us that since the Bill included
an obligation to meet an existing target, "the requirement
to publish a separate action plan is obviated by the existing
duty to meet the commitment."[57]
Officials subsequently clarified that, by the time the Annual
Report was published in July, plans would already be in place
to remedy any shortfalls.[58]
33. The Government did not provide
us with an adequate explanation of why an action plan was not
necessary should the target not be met. While we accept that the
Government may intend to meet the target and would seek to remedy
any shortfalls recorded in its Annual Report, its accountability
to Parliament should include a statement of any actions already
taken and those planned in order to meet the target in the following
year. In such instances we recommend that this action plan be
included in its Annual Report, on which this Committee will take
evidence and report to the House. The House would then have the
opportunity to debate the options set out in the action plan.
An unenforceable law?
34. Clause 3 states that accountability for missing
the target is to Parliament alone and that "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." In other words, a failure to
meet the target is not to be considered unlawful and it is not
intended that there be legal recourse for failure. The Fiscal
Responsibility Bill which passed into law on 20 January 2010 contains
the same provisions regarding accountability for failure to meet
targets. Legal experts have cautioned against enshrining in legislation
"targets" which by their nature cannot be guaranteed
and which cannot be enforced in a court of law.[59]
35. We asked the Government what role, if any,
it envisaged for the courts should the Government fail to meet
the target. The Minister explained that the Bill related to a
particular spending commitment and that "it is the constitutional
convention that it is Parliament's responsibility to hold the
Executive to account in that area."[60]
He noted that this would not prevent the courts from investigating
particular spending decisions and whether or not these met the
definitions of acceptable development spending as set out in the
2002 International Development Act.[61]
We have already discussed the importance of the poverty reduction
focus of the 2002 Act which this draft Bill does not propose to
alter.
36. It is clear that the Government
does not intend compliance with the 0.7% target to be subject
to a court of law other than Parliament. We accept that, as the
Bill intends only to make a duty of an already agreed target,
that the Government's primary accountability for this duty should
be to Parliament. We are however aware of, and have sympathy with,
legal arguments that such duties should not therefore be enshrined
in law.
37. Some NGOs have also suggested that the accountability
measures could be strengthened if scrutiny of the target by this
Committee was written into the Bill.[62]
However, this Committee already
has within its remit scrutiny of the expenditure of the Department
for International Development. We do this annually in our report
on the Departmental Annual Report which takes into account DFID's
expenditure and we have commented in each recent year on progress
by the UK towards the 0.7% target. If the Bill were passed we
would continue to examine whether or not the target had been met.
We do not therefore believe it is necessary to explicitly set
out a role for the Committee in relation to this particular Bill.
47 Draft Bill, Clause 2, subsection 3 Back
48
Ev 52 Back
49
Ev 42 Back
50
Ev 44 Back
51
Ev 30 Back
52
Ev 32 Back
53
Q 103 Back
54
Ev 32, 42, 52, 56 Back
55
Ev 32 Back
56
Child Poverty Bill, Clauses 1 and 8 Back
57
Qs 107-108 Back
58
Qs 112-113 Back
59
For example see Joint Committee on the Draft Climate Change Bill,
Session 2006-07, Draft Climate Change Bill, HC 542-I, HL
170-I, para 113; HC 542-II, HL 170-II, Q4 [Professor Forsyth],
Ev 397-398 [Lord Norton of Louth] See also comments by High Court
judge, Mr Justice McCombe, Friends of the Earth and Help the
Aged v Secretary of State for Business Enterprise and Regulatory
Reform [2008] EWHC 2518 (Admin), 24 October 2008 Back
60
Q 114 Back
61
Qs 115-120 Back
62
Ev 32 Back
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