Ministers are hiding behind a legal loophole – but we’ve secured a vital concession on aid

The ONE Campaign recently took preliminary legal steps to challenge the government’s  decision to slash Britain’s international aid budget to 0.3% of national income – well below the 0.7% minimum level set in law.

While we are more sure than ever about the justice of our argument, we’ve decided not to go to court to seek judicial review. Here’s why.

The enormity of the human cost of a 40% cut to aid, around £6 billion every year, is hard to fathom. We saw a vivid example of this last month, in the £400 million cut to the UK’s contribution to Gavi, the global vaccine alliance, to support life-saving immunisation efforts in the world’s most disadvantaged countries. The UK’s recommitment to Gavi is welcome and could save a million children’s lives. But the cut from previous UK support could still result in almost 400,000 avoidable deaths and leave 23 million children without vaccines.

Furthermore, this is in an area the government has declared as a priority in its new strategy. Even deeper cuts can be expected in programmes such as the protection of women and girls, education and peacebuilding.

The depth of this cut means that, by the end of this parliament, Keir Starmer will have reduced international aid more than any other prime minister on record – worse than Boris Johnson or Margaret Thatcher. This from a leader who ran for office on a commitment to return the UK to its legally mandated 0.7% target. With such a clear breach of a legal obligation, why has ONE now decided not to challenge the decision in court? 

The answer lies in the government’s response to the arguments we set out in our pre-action letter. Our first objective in taking this preliminary legal step was to get a clear commitment from the government that the cut to 0.3% is only temporary. Along with other advocates, we had become increasingly concerned that the government had no intention of returning to the 0.7% commitment. This concern was heightened in mid-May when the development minister, Baroness Chapman, referred to a “0.3 world”, saying “this is the new normal and we have to make this work”.

The government’s reply to us in early June appears to correct that statement. It insists firmly that the cut is temporary, that ministers intend to rebuild capacity for development and that the 0.7% target remains in place.  This matters.  There is a pathway to growth and 0.3% is not the “new normal” after all.

Of course, we wanted more. But beyond this vital concession, rather than offer a credible defence of the decision itself, government lawyers fell back on a legal mechanism. They insisted that the inclusion of a so-called ‘ouster clause’ in the 2015 International Development Act means the courts have no jurisdiction to hold the government to account for breaching the statute.

The most generous interpretation of this clause is that it stops ministers being dragged into court if aid falls slightly below the 0.7 target, given the risks of fluctuating national income projections. The original sponsors of the legislation are clear that it was never meant to apply to flagrant, long-term breaches such as this. The courts are increasingly being confronted by the use of these clauses to effectively block scrutiny of government conduct. It is a bitterly disappointing defence from a prime minister who once declared that “the integrity of British justice has always been the envy of the world”.   

Our lawyers were clear: our case is strong. The government’s defence on the substance is weak, but the ouster clause may catch us. When we asked our legal team what the chances were of a court siding with the government and refusing to hear our case, they put the risk at 50%. The court sided with the government on this issue when it refused permission to International Planned Parenthood Federation’s challenge to the 2020 aid cut, albeit that claim also failed on other grounds.

With these odds, pursuing a full judicial review against the might of the government machine is too great a legal and financial risk for a non-profit organisation like ours. The modest costs incurred so far would skyrocket. The case would consume our team, when there is so much work to do on the wider challenge of rebuilding public and political support for a strong British approach on international development – not just with aid but with a range of other tools too.

There were other factors too. We considered the risk that the government, if defeated in court, would simply change the law with a new act of parliament. While obvious flaws in the existing legislation have been revealed, it nevertheless represented bold, hard-won progress, and it may still prove influential in the years to come. We are better off with the 2015 Act than without it.

We even got the impression that some dark corners of government might actually be quite pleased to see a high-profile legal case where ministers could parade themselves as defenders of the public purse, facing down the opposition of noisy campaigners and troublesome lawyers.  We have no interest in playing a role scripted for us by some government political advisors in their psychodrama with the populist right.  

For these reasons, we will not seek judicial review of the government’s aid cut. We look to parliamentarians to ensure ministers are held accountable, and we will work vigorously and constructively to do the same, alongside our civil society partners.

Was it worth it? While we are disappointed that the government has chosen to hide behind a legal get-out clause, our action has forced a correction of ministerial comments that the lower aid level should be seen as a long-term reality, instead reconfirming that the cut is temporary. It reopens the path towards growth and significantly reduces the possibility that aid might be cut even further. This matters, as every half-percentage point shift in the aid ratio is worth a billion pounds more – or less – for vital international cooperation.

Additionally, the response confirms that no attempt was made to consider the impact of the £6 billion cut before it was made. The government argues that they are only required to make this assessment at the next stage, before decisions are made about cuts to individual programmes. This explanation indicates a chaotic and callous approach to major decision-making. Imagine, for example, announcing a 40% cut to the NHS budget – and only considering the impact on patients when it comes time to decide which hospitals to close. 

Nevertheless, the government has conceded that it is required to make that assessment, including the impact on women and girls, and on poverty reduction efforts. It must conduct these assessments thoroughly and share them transparently in the coming weeks. 

So, even without a court case, this action mattered and it leaves unfinished business.

What next? We don’t have a court summons for ministers, but we have a to-do list.

Set a timetable to return to 0.7%. The government should rectify this breach of the law as soon as possible, by setting a clear timetable for increasing aid investment in the medium term, leading to a return to the legally-enshrined 0.7% target.

Focus the reduced budget ruthlessly where it can have the most impact. The FCDO’s new priorities of health, humanitarian assistance and climate are a good start, but need to be matched with a strong commitment on women and girls, where the UK has a proud history. This ruthless focusing must also lead to an end to the use of international aid for costs here in the UK, where £1 in every £5 of it is currently spent domestically on housing refugees and asylum seekers. This vital expenditure should not be met by the continued raid on crucial overseas assistance.

Show serious global leadership beyond aid alone. The government should show by its actions in the coming months that it wants to be taken seriously as a partner in international cooperation. This means offering a real vision of the role Britain can play, not just with its aid funds but with other levers of influence. For example, by helping resolve the unsustainable debt and cost of capital crisis for developing countries, reforming the international financial institutions and health bodies to be better aligned to the needs of those countries, and fuelling the fight against AIDS, TB and malaria by putting real diplomatic muscle behind Britain’s role as co-chair of the replenishment of the Global Fund, which seeks to end the deadly impact of those diseases once and for all.

Aid was never the whole of the answer to global challenges. But it can save lives, help countries on a path towards sustainability and self-sufficiency, and make Britain stronger and safer in a volatile world. 

It also says something about who we are as a country. By cutting aid, ministers sent a message that Britain was ready to ignore its legal obligations and the resulting human cost, and turn its back on the world. What they do in the coming months will determine whether they can recover – not in a court of law, but in the court of public opinion, at home and around the world.