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Published online by Cambridge University Press: 29 June 2018
In this paper we explore a case for judicial review brought against the Secretary of State for International Development by an Ethiopian national, Mr O. The claimant alleged that the Department for International Development (DfID) had failed adequately to assess evidence of human rights violations in Ethiopia to which funds provided by DfID had contributed. Warby J ruled that the claim merited a full hearing. DfID is unaccustomed to judicial review: the O case is the first time since the 1995 Pergau Dam case that UK development aid has been reviewed by the courts. We study Warby J's judgment and its implications for accountabiity for aid decisions. We argue that both the wider context for aid and the legal framework governing development assistance have changed significantly in the 20 or so years since Pergau. In particular, we show that despite the UK's new legal commitment, made in 2015, to spend 0.7% of gross national income (GNI) on official development assistance, the existing mechanisms for scrutinising aid decisions are inadequate. We argue that there is an accountability gap in relation to the UK's now considerable development spending and explore the role of judicial review in this context.
This paper arises from our work on Cardiff Law School's Global Justice Pro Bono programme and we are grateful to our students on the programme for their enthusiasm and support. We are grateful to Keith Syrett and to the students on our Law and Global Justice clinic at Cardiff Law School, in particular Bianca Cridland, for discussing this paper with us as it developed.
1 [2014] EWHC (QB) 14 July.
2 Statement by the DfID February 2015 (on file with the authors).
3 T Hickman and M Sunkin ‘Success in judicial review: the current position’ UK Const L Blog, 19 March 2014.
4 [1995] 1 WLR 386.
5 Human Rights Watch Ethiopia ‘UK aid should respect rights: ruling permits review of development agency's compliance’, available at www.hrw.org/news/2014/07/14/ethiopia-uk-aid-should-respect-rights.
6 R (on the application of Client Earth) v Secretary of State for the Environment Food and Rural Affairs [2015] UKSC 28.
7 International Development (Official Development Assistance Target) Act 2015.
8 Manji, A ‘The International Development (Official Development Assistance Target) Act 2015: legislative spending targets, poverty alleviation and aid scrutiny’ (2016) 79 Modern Law Review 655CrossRefGoogle Scholar (arguing that it is unlikely that the new Commission for Aid Impact (CAI), which is entrusted with scrutinising aid spending and reporting to the Parliamentary Committee on International Development, will review aid decisions from a broad strategic or human rights perspective. Instead.
9 McEldowney, JF ‘The control of public expenditure’ in Jowell, J and Oliver, D (eds) The Changing Constitution (Oxford: Oxford University Press, 2011) pp 375–400Google Scholar.
10 [2014] EWHC 2371 (Admin).
11 See DfID Development Tracker available at https://devtracker.dfid.gov.uk/countries/ET.
12 Human Rights Watch, below n 13. It is interesting to note that although the Pergau Dam case was heard in 1994, ‘questions were being asked in the House of Commons as early as 1989’. Considerable amounts of aid were disbursed in both cases after questions began to be raised and before the funding came to an end.
13 See F Horne ‘Ethiopia's bloody crackdown: the case for international justice’ Human Rights Watch Report, available at https://www.hrw.org/news/2016/08/18/ethiopias-bloody-crackdown-case-international-justice.
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16 Statement of claim (on file with the authors).
17 International Consortium of Investigative Journalists ‘Leaked report says World Bank violated own rules in Ethiopia’ 20 January 2015, available at http://www.icij.org/blog/2015/01/leaked-report-says-world-bank-violated-own-rules-ethiopia.
18 International Consortium of Investigative Journalists, ibid.
19 The ‘terseness’ of a statement made by DfID has been commented on. ‘DfID's announcement is striking in that it makes no reference to the controversy that has surrounded the PBS in recent years’. See J Lunn ‘Ethiopia: DFID end support to the Promotion of Basic Services Programme’ Standard Note SN07116, 2 March 2015 (House of Commons Library, International Affairs and Defense Section).
20 See ‘Unwanted aid: DfID and forced resettlements’ (The Economist, 22 July 2014). For criticism of the case in the media, see ‘Refugee uses UK money to sue’ (Daily Mail, July 2014).
21 R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement Ltd [1994] EWHC (Admin) 1 at 8.
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26 See Eliminating World Poverty: A Challenge for the 21st Century Cm 3789, 1997.
27 McAuslan, above n 22.
28 International Development Act 2002.
29 See Lankester, above n 25.
30 ‘The coalition: our programme for government (2010), available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/78977/coalition_programme_for_government.pdf.
31 See Manifesto of the UK Independence Party 2015, available at http://www.ukip.org/manifesto2015.
32 Manji, above n 8.
33 See D Cullen and A Manji ‘Making UK aid work: why scrutiny is key – and how to achieve it’ LSE British Politics and Policy Blog, August 2016, available at http://blogs.lse.ac.uk/politicsandpolicy/making-uk-aid-work/.
34 Manji, above n 8.
35 Manji, above n 8.
36 D Abbott ‘The stealth aid raid: militarising Britain's development budget, 29 February 2016, available at http://news.trust.org//item/20160229173810-dj9vp/?source=shtw.
37 On the governance of this non-DfID aid spending, see A Manji and P Mandler ‘Written evidence submitted to the International Development Committee UK Aid: Other Government Departments inquiry’, available at http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/international-development-committee/uk-aid-other-government-departments/written/46950.html.
38 See UKIP Manifesto, above n 31. And by the media: O Harvey ‘Funding nemo: taxpayers’ aid cash splashed on tropical African fish’ (The Sun, 25 June 2015); and in relation specifically to the O case, see ‘Ethiopian Farmer given taxpayers money to sue Britain … for sending international aid to his homeland’ (Mail Online, 10 February 2016).
39 The petition is available at https://petition.parliament.uk/petitions/125692. See also D Cullen and A Manji ‘Why the UK needs a stronger legal framework for aid spending’, available at https://www.theguardian.com/global-development-professionals-network/2016/jun/19/uk-needs-stronger-legal-framework-aid-spending.
40 See D Hart ‘Richard III on the move again – pitched into the current judicial review debate’ UK Human Rights Blog, available at http://ukhumanrightsblog.com/2013/10/23/richard-iii-on-the-move-again-pitched-into-the-current-judicial-review-debate/.
41 Hart, above n 40. For an excellent critique, see S Sedley ‘Not in the public interest’ (2014) London Review of Books March 2014 36.
42 D Hart ‘Government still on standing warpath’ UK Human Rights Blog, 20 July 2014, available at https://ukhumanrightsblog.com/2014/07/20/government-still-on-the-standing-warpath/.
43 As Hart (ibid) puts it: ‘It is a tad ironic that this unsuccessful attempt to batten down the hatches on standing should come in an overseas aid case’ given that it was a case concerning overseas aid, Pergau, which is now seen as ‘a turning point in the courts’ current relaxed approach to standing’.
44 [2011] UKSC 46.
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46 See O v Secretary of State for International Development at 30.
47 For an insightful and suggestive critique of this messiness, see FS Saunders ‘Where on earth are you?’ (2016) London Review of Books February 2016.
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49 McAuslan, above n 22.
50 McAuslan, above n 22, at 600.
51 O v Secretary of State for International Development at 37.
52 [1977] QC 1014.
53 R v Secretary of State for the Home Department, ex p Gashi [1999] Imm AR 415, CA.
54 O v Secretary of State for International Development at 34.
55 Ibid, at 34.
56 Ibid, at 37.
57 Ibid, at 39.
58 Ibid, at 41.
59 Ibid, at 41.
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61 Sumption, above n 60.
62 Sumption, above n 60, at 3.
63 Sumption, above n 60.
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65 Below n 69.
66 Manji, above n 8.
67 S Brown and J Gravingholt ‘Security, development and the securitization of foreign aid’ in S Brown and J Gravingholt (eds) The Securitization of Foreign Aid.
68 Manji and Mandler, above n 37.
69 National Audit Office ‘Managing the official development assistance target’ HC 950 (2015).
70 See Independent Commission for Aid Impact ‘How DFID works with multilateral agencies to achieve impact’ (ICAI Report No 44, June 2015), available at http://icai.independent.gov.uk/reports/how-dfid-works-with-multilateral-agencies-to-achieve-impact/.
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73 See for example the ‘Global Challenges Research Fund’ of the Department for Business Innovation and Skills (BIS), announced as part of the 2015 Spending Review, which is composed of ODA funds as part of the commitment to spend 0.7% GNI on ODA: ‘The allocation of science and research funding 2016/7–2019/20’, available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/505308/bis-16-160-allocation-science-research-funding-2016-17-2019-20.pdf. See also A Manji and P Mandler ‘Parliamentary scrutiny of aid spending: the case of the Global Challenges Research Fund’, Parliamentary Affairs https://doi.org/10.1093/pa/gsy014.
74 Abbott, above n 36.
75 OECD ‘DAC High Level Meeting Communiqué’ 19 February 2016, available at http://www.oecd.org/dac/DAC-HLM-Communique-2016.pdf.
76 Abbott, above n 36.
77 Above n 69.
78 National Audit Office ‘Managing the official development assistance target: a report on progress’ HC 243 (2017).
79 Above n 4, Rose LJ at 395.
80 B Rawlence ‘The refugee who took on the British government’ (The Guardian, 12 January 2016).
81 M Elliott ‘Standing and judicial review: why we all have a “direct interest” in government according to law’, available at https://ukhumanrightsblog.com/2013/07/30/standing-and-judicial-review-why-we-all-have-a-direct-interest-in-government-according-to-law-dr-mark-elliott/.
82 See N Branson ‘Debt and corruption in Tanzania’, discussing the landmark Deferred Prosecution Agreement between the UK Serious Fraud Office and Standard Chartered Bank in November 2015, available at http://www.africaresearchinstitute.org/blog/debt-and-corruption-in-tanzania/.
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84 Rawlence, above n 80.
85 Rawlence, above n 80.
86 M Sunkin ‘Conceptual issues in researching the impact of judicial review on government bureaucracies’ in Hertogh and Halliday, above n 83.
87 Sunkin, above n 86.
88 M Jennings ‘It takes a village, revisited’ Africa Development and Politics Blog, available at http://www.mikejennings101.wordpress.com.