Emma Norris argues that although legislated policy targets have their many advantages, of which a focus on longer-term objectives is one, they can also devalue the legislative process by by placing too few penalties on non-compliance. Here Emma highlights ways in which they might be more effective.
Team GB’s target of 48 medals at London 2012 was high profile, public – and, unlike so many other policy targets – achieved. Paralympics GB are also on track to meet their target of 103 medals. But would it have made any difference if the Blair government had decided to put the medals targets into law? The Institute for Government looked at the recent phenomenon of legislated policy targets at a private roundtable with lawyers and policy advisers and have published a paper on the pros and cons.
Labour had quite a penchant for legislated targets, introducing the target to eliminate fuel poverty by 2016; the target to ‘significantly reduce’ child poverty by 2020; and the Climate Change Act which targets an 80% emissions reduction by 2050. The current government has also committed to enshrining the 0.7% ODA target in law. But despite all this activity, legislated targets remain a controversial practice. So we asked: are legislated targets a commitment device, a political gesture or a constitutional outrage?
All governments legislate – and bind successor governments until that legislation is repealed. But this category of legislation deliberately makes it harder for subsequent governments to amend or remove the law. This can be due to specific provisions in the legislation (e.g. by including extra consultation or voting requirements to repeal the law) or more simply by creating a political commitment that few governments would want to publicly reverse (e.g. to reduce child poverty).
Why are governments interested in legislated targets? For Labour, the growth of legislated targets in recent years could be seen as part of a wider move to entrench elements of the welfare state and the post-war settlement including creating individual rights to services. More broadly, targets can also help make government more strategic – helping it to focus on long term goals and signalling the priority government attaches to an issue both internally and externally. The Climate Change Act is a case in point. It helped Defra and DECC get buy-in from other departments, focused Ministerial attention, showed international leadership in the run-up to Copenhagen and gave certainty to businesses considering long-term green investments that action on emissions reduction was going to happen.
But opponents of this form of legislation argue that targets can be dangerous. Governments can use legislated targets to give the impression of decisive action (e.g. ending child poverty) without having to discuss or commit themselves to any specific measures needed to achieve the goal. If such targets are then missed, it is unclear what legal redress there really is. A judge might declare a failure to meet the 2020 child poverty target unlawful which is undoubtedly politically embarrassing, but is also without clear legal consequences. It is highly unlikely the courts would ever mandate government to fulfil a target given their reluctance to get involved with the allocation of public money or to upset the ‘constitutional settlement’ between the executive and the judiciary. Indeed, the unclear legal consequences of missing legislated targets are highlighted in the draft (never enacted) Official Development Assistance Bill of 2010 which included an “ouster clause” stating that there would be no legal consequences for missing the target.
There are also more political concerns about the development of legislated targets. For instance, they could be used as an alternative to trying to entrench policies through winning the political argument and establishing a new political consensus through actions rather than legislation. It is also possible legislated policy targets could be used to pre-empt manifestos and narrow the area of debate at election time. This would place a particular burden on oppositions in the run-up to elections, who would need to have the courage to oppose when they realised that a trap was being set for them, rather than take the path of least resistance.
Given the risks of proliferation of targets with few penalties for non-compliance devaluing the legislative process, our paper suggests that:
- Targets should focus on high level outcomes; the best laws are those which enunciate general principles and focus on real problems (e.g. reducing emissions) without being too prescriptive about how to get there;
- Targets should be used sparingly and should have some built-in capacity for adaptation in the light of new circumstances;
- Independent oversight institutions (e.g. the Committee on Climate Change) are often more effective than the targets themselves at ensuring outcomes are met, for instance by ensuring targets are resilient to popular opinion
- The precise measures chosen for the target matter should be properly scrutinised with the implications of the measures needed to meet them properly understood;
- Any use of targets therefore needs to be clear about the consequences of failing to meet them.
At their strongest, targets can get government, business and other stakeholders behind crucial objectives such as reducing emissions and tackling climate change. But they should be seen as a means, not an end. Setting a target is not a substitute for putting in place the measures needed to achieve the objective. It is too easy for the government to get plaudits for setting a heroic goal – without having to come clean on the feasibility and desirability of doing what it takes to meet it.
One conclusion is that this development had been under-scrutinised – both in Parliament and the wider policy community and targets with big potential future costs were entered into rather casually. Our paper is intended to start the wider debate we think is necessary.
A version of this article was first published on the Institute for Government’s blog
Note: This article gives the views of the authors, and not the position of the British Politics and Policy blog, nor of the London School of Economics. Please read our comments policy before posting.
Emma Norris works on policy-making and governance at the Institute for Government.
Very interesting work, thanks… some reflections.
What makes us uneasy about legislated outcome targets?
They do bind future governments, but then so do all laws unless and until repealed. They do allocate future expenditure, but so do PFI, pensions or public spending deficits. I think what makes us uneasy is how easy it is to set an eye-catching but arbitrary outcome target combined with how opaque the consequences are for future expenditure and policy.
Asymmetry between legislating and repealing
Repealing a target is harder than legislating for it, not technically, but politically – it looks like failure to meet the ambition of a more progressive era. In contrast to a quantitative target, a change of rights, responsibilities, duties – the stuff of most legislation – is easier to make by replacing with something different. There is also an incentive not to repeal until right up to the time when the target is obviously already unreachable, but to leave it for a future administration.
Quasi-Constitutional
As you say, legislated targets do have a quasi-constitutional feel to them. All laws do bind future regimes, but these do it for unknown costs and consequences, and with fixed deadlines. That could be addressed by making them either harder to agree or easier to repeal (eg. sunset clauses, periodic renewal requirements, expert committee reviewing costs and benefits). I would favour the former, as easy-to-repeal weakens credibility, whilst hard-to-agree increases it.
Targets without action
For scrutiny purposes, I think any target needs to come with a reasonable account of how it would be achieved – knowing what we currently know, and how much that might cost. This may be sufficient to dim the desire to grab headlines with eye-catching targets. Perhaps an an outline of the delivery programme should be included with the target as part of the scrutiny process, or require review by NAO / PAC or similar. There is far too much uncritical applause from interest groups for the simple act of setting a target, and not enough critical attention given to the credibility of the pathway that the target implies.
European Union
The challenges with legislated targets are writ large in the EU – proposed by Commission officials, often strengthened by the European Parliament through opaque negotiation, possibly used tactically by officials to give them traction over other departments and budget. The European institutions don’t any have any of the reticence of the UK courts about sovereignty and very substantial fines for infraction can be levied. We should really raise the acceptance thresholds and intensity of scrutiny for EU legislated targets.
Overall, I think it is usually better not to code numerical outcome targets into primary legislation… a better way is to:
1. Express objectives qualitatively in legislation
2. Propose one or more principles that would assist with quantification
3. Require a strategy is drawn up with quantitative objectives that reflect government ‘agency’ based on the broader legal objectives and principles in legislation (1&2 above)
4. Have safeguarding principles – eg. value for money, feasibility,
5. Have an independent committee to recommend on interpretation of objectives, report on progress, recommend changes etc
Credibility is the real currency
However, in some areas the challenge is so profound and unusual, that the signals need to be really strong – climate change, perhaps. But then the question reverts to what consequences arise from: failure to meet targets; from actions that are inconsistent with meeting longer-term targets; or the threat that the legislation will be unwound later? It is not what is said, or even what is legislated for that counts. It is what is believed Legislation can contribute to credibility, but it’s no substitute for conviction that is continuously reinforced and consistently acted on.
We ought to make more distinction between performance measurement and reporting one the one hand – for which there is an overwhelming case, and targets, for which there is a more limited case. Targets are probably less universally useful than reporting.
See also my recent White Paper about the need for performance reporting standards. WhitehallWatch.org.
Legalised target setting for governments? Not at any price, government today is far too complex to be reduced to these simplicities, this old hat late 20th Century management theory type stuff is useless in terms of actual realities. Also the targets will be set on perhaps past data or future hopes or intentions and there is a lot that could go wrong here. Added to that the curses of recent decades involve manipulation and falsification of data, spin and more spin, and frequent fiddling of all sorts. Add to those a good dose of corruption to taste. It is one of those bright ideas filled with potential for disaster.