McClean, R (On the Application Of) v First Secretary Of State & Anor

This is the hearing of an oral application for permission to apply for judicial review of the “confidence and supply” agreement reached between the Conservative Party and the Democratic Unionist Party of Northern Ireland (“the DUP”) dated 26 June 2017. I will call this the confidence and supply agreement.

In the General Election held in June 2017 the Conservatives were returned as the party with the largest number of MPs but without an overall majority. In order to be able to form a government which could survive a hostile vote of no confidence in the House of Commons the Prime Minister therefore had to seek political support from another party, in this case the DUP. The confidence and supply agreement was made in order to set out the terms on which the DUP would be willing to provide its support in Parliament for the Prime Minister and her government on motions of confidence and motions for supply of funds for carrying on the business of government. It is set out in a letter jointly signed on behalf of the Conservative Party and the DUP, and is expressed to be intended to operate “to deliver a stable government in the United Kingdom’s national interest for the duration of this Parliament.” The agreement sets out various points of policy agreement between the parties for the purposes of working together in Parliament.

The claim is brought against the First Secretary of State and the Attorney General as representatives of HM Government and the Prime Minister. For the purposes of this hearing the defendants are prepared to accept that the claim is one which is properly targeted against the government as such, as distinct from particular political parties.

The claimant is a citizen of Northern Ireland. He is a politician in Northern Ireland who supports and has stood for election to Parliament on behalf of the Green Party of Northern Ireland. No point is taken at this hearing that he lacks standing to seek to bring this challenge.

The relief the claimant seeks from the court is a series of declarations essentially to the effect that the decision of the government to enter into the confidence and supply agreement and the further decision of the government to make the spending commitments contained in that agreement are unlawful and could not lawfully be carried into effect. I will call these the relevant decisions. It can be seen at once that the claim seeks to strike at the heart of the political arrangements for the conduct of parliamentary business and for the conduct of government.

The claimant at one stage relied on three grounds of claim, but having seen the summary grounds of defence filed by the government he has abandoned the first one, which was based on a contention that the relevant decision is unlawful as being contrary to the Belfast Agreement of 1998 between the government of the UK and the government of the Republic of Ireland, also known as the Good Friday Agreement. He no longer maintains that argument and it is unnecessary to say anything more about it.

The claimant just relies on the remaining two grounds of claim:

In my judgment, neither of these grounds of claim is properly arguable in a court of law. This is a case in which it is clear that permission to apply for judicial review should be refused at this stage because the claim is unsustainable. There is no other basis on which it would be appropriate to grant permission to apply for judicial review.

I will deal with each ground in turn.

This ground was added to the grounds of claim by way of amendment, and has undergone some mutation in the course of the proceedings. In my judgment it is unsustainable and reveals no arguable ground of challenge.

It is accepted by the defendants, indeed positively submitted by them, that all expenditure of public funds by ministers requires parliamentary authority. That is indeed a fundamental rule of our constitution. Parliament has to vote monies for particular purposes before ministers can spend them. That is why the confidence and supply agreement has two limbs, to ensure that the government has the support of the DUP MPs in Parliament on confidence motions and also to ensure that the government will have the support of the DUP MPs in Parliament on issues of supply, that is to say on issues on which Parliament has to vote that money be provided for public purposes. Ultimately, provision of money has to be authorised in legislation duly passed by Parliament.

The mechanism by which money is made available by central government to Northern Ireland, set out in section 58 of the NIA 1998, reflects this constitutional position. Section 58 states,

“The Secretary of State shall from time to time make payments into the Consolidated Fund of Northern Ireland out of money provided by Parliament of such sums as he may determine.”

What is contemplated by the confidence and supply agreement is that relevant Estimates or supplementary estimates reflecting the expenditure commitments in the agreement will be presented to Parliament and approved by Parliament, ultimately in primary legislation in the form of a relevant Appropriation Act. That process will leave no room for doubt that Parliament has authorised the provision of monies out of central funds for the expenditure referred to in the confidence and supply agreement and in the statements by the government of spending commitments to give effect to that agreement. As the defendants point out, the government is committed to ensuring that any money provided pursuant to the confidence and supply agreement has appropriate parliamentary authorisation. It is not just a question of political commitment. The law also ensures that this will be so. As the defendants say, the confidence and supply agreement “could not, and does not, involve the Government committing itself to any provision of additional funds to Northern Ireland which would not be authorised under standard procedures, including the consent of Parliament.”

However, Mr Chambers QC, who dealt with this ground of challenge for the claimant, says that this will not be enough. He says that this process will only get the relevant funds into the control of the Secretary of State for Northern Ireland, but that there is an implied limit in section 58 regarding his ability to pass them on to the government of Northern Ireland in accordance with Parliament’s intentions and authorisation under the relevant Estimates and Appropriation Act. According to Mr Chambers, it would be unlawful under section 58 for the Secretary of State to pass the relevant funds on to fulfil Parliament’s intention as manifested in the relevant Estimates and Appropriate Act. This is because, so it is said, there is a principle of the common law which forbids the Secretary of State from dispensing money to serve party political interests and section 58 does not in terms disapply that principle.

In my judgment, this is not an argument with any prospect of success. Neither of the authorities on which Mr Chambers particularly relied in advancing it – the Fire Brigades Union Case [1995] 2 AC 513 and Porter v Magill [2002] 2 AC 357 – supports it. The Fire Brigades Union case concerned a situation in which the Crown’s prerogative powers to set tariffs under a criminal injuries compensation system were found to have been impliedly abrogated by the enactment of a statute of 1988 which provided for higher tariff rates, even though it had not yet been brought into effect. The defendant Secretary of State conceded that if that were the case, the approval of spending estimates predicated on the lower prerogative tariffs did not supply lawful authority for those tariffs. But the reason for that was that the directly relevant statute, the 1988 Act, had removed any prerogative power to implement lower tariffs and the approval of spending estimates did not trump the 1988 Act’s abrogation of such power. That is an entirely different context from the present one. The case does not offer support for Mr Chambers’ submission that there is some principle of the common law which governs expenditure of money by central government when using funds voted by Parliament for the relevant purpose.

Similarly, Porter v Magill provides no support for any such supposed common law principle or impediment. That case concerned the exercise of powers conferred on a decision-maker by an Act of Parliament. The House of Lords confirmed the general principle of public law that powers conferred on a public authority may only be exercised for the purpose for which those powers were conferred and not otherwise. The powers in issue in the case were statutory powers for the sale of council houses by a council, which had been exercised for the improper purpose, unauthorised by the statute, of promoting the electoral advantage of a political party: see [19] per Lord Bingham and also the reference to “municipal powers” by Lord Scott at [132]. The limits on the proper purposes for which the powers could be used were derived from the statute itself, on its proper interpretation. In the exercise of interpretation there was no reference made to any common law principle of a kind which Mr Chambers asserts in this case.

In my judgment, there is no arguable case for the claimant that the Secretary of State’s powers under section 58 of payment on of monies voted by Parliament for use in Northern Ireland pursuant to the confidence and supply agreement are subject to any limit derived from any principle of the common law as is asserted by Mr Chambers, and therefore there was no need for section 58 to say anything to exclude the operation of any such principle. In my view the claimant has no arguable claim that section 58 contains any relevant limit which would render unlawful the implementation of the spending commitments in relation to Northern Ireland set out in the confidence and supply agreement. Where Parliament has itself approved the provision of monies out of central funds under the process of Estimates and enactment of Appropriation Acts I have described for the purpose of providing those funds to the government in Northern Ireland pursuant to those spending commitments, it is plain that section 58 authorises and allows the Secretary of State to pay those monies on as Parliament intended. There would be no unlawfulness involved.

At some points in his submissions Mr Chambers seemed to rely on Porter v Magill in support of a wider argument, that MPs from the DUP and the Conservative Party would be acting unlawfully if they voted in Parliament on Estimates and an Appropriation Act designed to give effect to the confidence and supply agreement. But I do not consider that Porter v Magill offers any support at all for such a wide-ranging and radical submission. DUP MPs would be acting perfectly properly if they decide to vote in accordance with the confidence and supply agreement, as an agreement which provides for the creation of a stable government and for the provision of more funding for the benefit of their constituents. MPs are fully entitled to make those sorts of judgments. The same is true for Conservative MPs, who will presumably believe that it is in the interests of the country and their constituents to have a stable and Conservative government. Unlike the council in Porter v Magill, no MP in our case would be exercising any powers conferred on them by statute, which would be subject to express or implied limits like the statutory powers in that case. Porter v Magill has no arguable bearing on the different issues and in the different context in which the present claim is brought. The relevant decisions in our case go to the issue of how voting rights of MPs will be exercised in Parliament. Unlike in Porter v Magill, those voting rights are not statutory powers subject to a statutory obligation that they be exercised without regard to party advantage. The voting rights of MPs are used to enact statutes and hence to impose statutory duties. They are not the subject of statutory duties themselves. Moreover, it is abundantly clear under our constitution that the voting rights of MPs can perfectly legitimately be exercised having regard to party advantage. Indeed, that is how they regularly are exercised day in day out in the conduct of business in Parliament.

If and when MPs from the Conservative Party and from the DUP vote in favour of allocation of funds to fulfil the policy commitments set out in the confidence and supply agreement - and assuming they succeed in passing the relevant motions and enacting the relevant legislation – the enactments under which the money is voted will carry the legal authorisation which permits that money to be spent lawfully to implement the political commitments which have been made.

In my judgment, the making of the confidence and supply agreement and the announcement of spending commitments are political acts which cannot be challenged, declared unlawful or struck down in a court of law. On the one hand, the claimant has no valid claim in law to impugn the way in which MPs in both parties propose to vote to give effect to them. On the other hand, it can also be seen that once they have voted so that Parliament authorises the expenditure in line with the commitments in the agreement, the claimant will have no valid claim in law to say that the expenditure is unlawful.

The claimant says that the government had an illegitimate conflict of interest when it made the relevant decisions to enter into the confidence and supply agreement and to announce spending commitments in accordance with it. In my view this is not remotely arguable as a contention of law. In this political context there is no relevant standard of impartiality or disinterestedness which has been breached. The confidence and supply agreement is a political agreement made in a context where some form of political agreement was inevitable and indeed required if a stable government was to be formed. All political parties seek to promote particular interests and particular interested points of view. That is the nature of the political process, and the disciplines to which they are subject are the usual political ones of needing to be able to command majorities in the House of Commons on important votes and of seeking re-election at the appropriate time. The law does not super-impose additional standards which would make the political process unworkable.

I also agree with the further answer to this ground of claim which the defendants have put forward. That answer is that in any event this ground of claim is non-justiciable in this court for a further distinct reason. The confidence and supply agreement is directed to securing support from the DUP for the government when voting in Parliament. It is well-established that parliamentary privilege would prevent a court from reviewing what is done in Parliament by way of voting: see e.g. R (Wheeler) v Prime Minister [2008] EWHC 1409 (Admin), DC, in particular at [49]. The same principle of parliamentary privilege prevents a court from inquiring whether MPs are acting to vote in implementation of a confidence and supply agreement such as this. Not only does the confidence and supply agreement cover how the DUP MPs will vote in Parliament on confidence and supply motions – hence the name – it also covers how the Conservative party MPs will vote in Parliament to give effect to those elements of the quid pro quo which require expenditure of money, which will have to be voted by Parliament. The claimant’s claim in respect of the relevant decision cannot be separated out from an attack on proposals as to how MPs in both parties should vote in Parliament, which is the main object and effect of the agreement in issue.

The claimant contends that it is arguable that the arrangements in the present case involve the commission of an offence under the Bribery Act 2010 and, further, that it is appropriate for that matter to be resolved by way of a claim for judicial review.

The relevant provisions of the 2010 Act for present purposes provide as follows.

“1 Offences of bribing another person

(1)

A person (“P”) is guilty of an offence if either of the following cases applies.

(2)

Case 1 is where—

(a)

P offers, promises or gives a financial or other advantage to another person, and

(b)

P intends the advantage—

(i)

to induce a person to perform improperly a relevant function or activity, or

(ii)

to reward a person for the improper performance of such a function or activity.

(3)

Case 2 is where—

(a)

P offers, promises or gives a financial or other advantage to another person, and

(b)

P knows or believes that the acceptance of the advantage would itself constitute the improper performance of a relevant function or activity.

(4)

In case 1 it does not matter whether the person to whom the advantage is offered, promised or given is the same person as the person who is to perform, or has performed, the function or activity concerned.

(5)

In cases 1 and 2 it does not matter whether the advantage is offered, promised or given by P directly or through a third party.”

“A relevant function or activity” is defined in section 3 of the Act as follows:

“3 Function or activity to which bribe relates

(1)

For the purposes of this Act a function or activity is a relevant function or activity if—

(a)

it falls within subsection (2), and

(b)

meets one or more of conditions A to C.

(2)

The following functions and activities fall within this subsection—

(a)

any function of a public nature,

(b)

any activity connected with a business,

(c)

any activity performed in the course of a person's employment,

(d)

any activity performed by or on behalf of a body of persons (whether corporate or unincorporate).

(3)

Condition A is that a person performing the function or activity is expected to perform it in good faith.

(4)

Condition B is that a person performing the function or activity is expected to perform it impartially.

(5)

Condition C is that a person performing the function or activity is in a position of trust by virtue of performing it.

(6)

A function or activity is a relevant function or activity even if it—

(a)

has no connection with the United Kingdom, and

(b)

is performed in a country or territory outside the United Kingdom.

(7)

In this section “business” includes trade or profession.”

Section 4 of the Act provides that a relevant function or activity “is performed improperly if it is performed in breach of a relevant expectation”. In relation to cases falling within condition A or B, the relevant expectation is that inherent in the condition itself. In relation to condition C, the expectation means “any expectation as to the manner in which, or the reasons for which, the function will be exercised”. Section 5 of the Act provides that the test of what is expected is a test of what a reasonable person would expect in relation to the performance of the relevant function or activity.

In summary, therefore, it will be a criminal offence for a person to offer or promise, or to give, a financial or other advantage to another where the person intends that advantage to induce the other person to perform a relevant function improperly, that is, in breach of a relevant expectation.

The claimant contends in the present case that Her Majesty’s Government has offered or promised or provided a financial or other advantage to the DUP MPs. That advantage is said to be (1) the financial support that HMG is prepared to make available to Northern Ireland or (2) the participation of DUP MPs in the co-ordination committee provided for by the confidence and supply agreement between the Conservative Party and the DUP. It is said that those advantages are intended to influence the way in which the DUP MPs will vote on certain issues in the House of Commons. Voting is said to be the “relevant activity” for the purposes of section 3 of the Act. Finally, the claimant contends that that would involve the DUP MPs violating one or more of conditions A to C as they are expected to act in good faith and to act impartially, and voting in accordance with the confidence and supply agreement would breach those expectations; or they are in a position of trust and voting in that way breaches the expectation attached to that that position of trust.

In my judgment, and as a minimum, there is no arguable case here that MPs would be acting improperly by reference to any one of the three conditions set out in section 3 of the 2010 Act. First, DUP MPs would not be acting improperly in the sense of acting in bad faith within condition A or in breach of any duty to act impartially within condition B if they were to vote in accordance with the agreement.

It is for each MP to act, and vote, as he or she considers right in the interests of their constituents and the country more generally. In doing that they are obviously entitled to have regard to advantages which may accrue for their constituents. In this case, by adhering to the confidence and supply agreement the DUP MPs seek to secure stable government and financial benefits for Northern Ireland their constituents. MPs are also entitled to have regard to party advantage and the party line. It is by acting as part of a political party that MPs are able to engage in coherent and effective political activity. Also, in an important sense it is by acting as part of a political party that they are open to being held accountable to the electorate. The confidence and supply agreement reflects the arrangements that the Conservative Party and the DUP consider appropriate to ensure that the current government is able to maintain a majority in the House of Commons and is able to ensure the passage of the financial measures considered necessary to enable the government to function. The financial measures in question include such fundamental things as the Budget, money and finance bills, and supply and appropriation legislation and estimates. A DUP MP who votes in accordance with that agreement, or in support of the provision of particular financial support to Northern Ireland, is not acting in bad faith and is not violating any duty to act impartially within the meaning of section 3 of the 2010 Act. An MP who behaves in this way does not go against any expectation of reasonable people in the UK. On the contrary, he or she would be acting in line with the expectation of reasonable people in the UK. That is precisely how parliamentary politics is supposed to work.

The claimant submits that the following considerations establish that it is arguable that doing so would involve an MP acting improperly. First, so far as Condition A is concerned, the claimant contends that there is an expectation that MPs would not vote for the purpose of complying with the confidence and supply agreement as the agreement is one that involves expenditure for an improper purpose applying the principles in Porter v Magill. The premise underlying this submission is that the confidence and supply agreement, in some way, involves unlawful conduct. For the reasons already given, I do not consider that the operation of the agreement would involve any breach of the principles in Porter v Magill. There is, therefore, no basis for contending that voting in accordance with the confidence and supply agreement would involve a breach of any relevant expectation as to how MPs should vote when performing their functions in good faith.

Secondly, so far as Condition B is concerned, the claimant submits that there is an expectation that MPs will act impartially and will not be influenced by payment of a bribe as defined in paragraph 12 of the Code of Conduct for Members of Parliament. That paragraph provides that the acceptance by an MP of a bribe to influence his or her conduct as a member, including the receipt of any fee, compensation or reward, is contrary to the law of Parliament.

I am doubtful that that Code is an admissible guide to the meaning of section 3 of the 2010 Act. I note that paragraph 12 of the Code refers to the law of Parliament and paragraph 17 of the Code provides that the application of the Code is a matter for the House of Commons.

In any event, however, I do not consider that it is reasonably arguable that the situation which appears to be envisaged in paragraph 12 of the Code – that is to say, a situation which involves the acceptance by an MP of a personal inducement to vote in a particular way - in any way indicates that an MP who votes in accordance with a confidence and supply agreement, or whose constituents may benefit from the provision of financial support to Northern Ireland, is in breach of any duty to act impartially derived from the Code.

In fact, Mr Cooper QC, who presented the argument for the claimant on this ground of challenge, agreed that it depends upon the claimant being correct on his argument based on Porter v Magill under the first ground of challenge. Since the claimant has no arguable challenge under the first ground, for the reasons I have already given, so also he can have none on proper analysis under the second ground.

Thirdly, Condition C requires that the person performing the function or activity - here the MP voting in the House of Commons - be “in a position of trust by virtue of performing it” and that there be a breach of an expectation as to the manner or reasons for which the function is performed. In my judgment, those words do not arguably apply to a situation where an MP votes in the House of Commons. That is not a position of trust arising by virtue of the fact that the MP is voting. Furthermore, as I have already observed, there is no expectation that the function or activity of voting will not be influenced by the confidence and supply agreement. In this regard, the claimant contends again that there is a relevant expectation that DUP MPs will vote in the House of Commons for lawful reasons and will not vote by reference to an agreement which is said to be unlawful applying the principles in Porter v Magill. Again, for the reasons already given, I do not consider that the making or implementation of the confidence and supply agreement would involve any breach of the principles in Porter v Magill. There is, therefore, no basis for contending that voting in accordance with the agreement would involve any breach of any expectation as to how, or for what reasons, an MP may vote.

For those reasons, it is clear that voting in the House of Commons in accordance with the confidence and supply agreement would not fall within any of Conditions A, B or C set out in section 3 of the Act, without needing to say anything more about other difficulties which might lie in the claimant’s path so far as this ground of claim is concerned. It would not involve any breach of any expectation of good faith on the part of the Member of Parliament. It would not involve any breach of any duty to act impartially in the sense provided for by section 3 of the 2010 Act. The situation does not involve a position of trust arising by virtue of the fact that the MP votes in the House of Commons. Nor does voting in accordance with the confidence and supply agreement involve the breach of any expectation as to how or for what reasons an MP will vote. For these reasons alone, if for no others, as a matter of law the offences of bribery set out in the 2010 Act can have no application to the making of the confidence and supply agreement or its operation.

In those circumstances, I do not need to consider further the question of whether voting in Parliament is a function of a public nature in the sense that that phrase is used in section 3(2)(A) of the 2010 Act. I can see there might be arguments on both sides of a debate about that question.

I think it is appropriate to mention here that judicial review is not normally an appropriate method of determining whether or not a particular course of conduct would involve the commission of a criminal offence. However, as it is clear on any analysis of the law that the making and implementation of the confidence and supply agreement in this case would not involve the commission of any offence under the 2010 Act, it is appropriate simply to refuse permission on the basis that this ground is unarguable, rather than on the ground that the matter is better tested in criminal proceedings. If it had been arguable that, as a matter of law, certain conduct might, depending on the circumstances, have involved the commission of an offence, then judicial review would have been unlikely to be an appropriate means of resolving the issue.

For those reasons, the claim that voting by MPs in the House of Commons in accordance with the confidence and supply agreement or participating in a co-ordinating committee to facilitate voting in according with the arrangements for confidence and supply might involve the commission of an offence under the 2010 Act is unarguable and permission to apply for judicial review on this ground also is refused.

For the reasons I have given, I would refuse to grant permission to apply for judicial review in this case.

I agree.

The defendants make an application for payment of their costs of preparing the acknowledgment of service and their costs for attendance at the oral permission hearing today. The usual position according to the Mount Cook principles is that the costs of preparing the acknowledgment of service would be awarded in the defendant's favour.

In relation to the costs of the oral permission hearing, the background is that the court directed that there be a one day inter partes hearing. So the claimant has known since then that this was a case outside the usual run of permission applications.

In a letter dated 13^th October, the Government Legal Department put the claimant on notice that the defendants would be seeking their costs in relation to the permission hearing if they were successful. It is fair to point out that in the defendant's skeleton argument they said only that the costs of preparing the acknowledgment of service would be sought without referring more widely to the cost of the permission hearing itself. But in my view, against the background the letter of 13^th October, nothing said in the skeleton argument purported to tie the Government's hands as to the costs orders that it would seek. The Government gave no undertaking not to seek whatever costs it thought might be justified by application at the end of the hearing and in my view the skeleton argument could not be fairly relied upon as indicating a clear departure from the general position set out in the letter of 13^th October.

The costs of a defendant in relation to an oral permission hearing are ordinarily not allowed unless exceptional circumstances apply, judged by reference to factors set out in the Mount Cook case.

In my view, this is a case where exceptional circumstances apply. First, as appears from the judgment, I consider that this was a hopeless claim on both the grounds put forward.

Secondly, the claimant persisted with this hopeless claim even although the clear flaws in it were pointed out in correspondence by the defendants.

Thirdly, the claimant has had the benefit of an unusually long inter partes hearing at the permission stage involving a full exploration of arguments both orally and in writing on the part of the claimants and in writing and potentially orally, if they had been called upon, by the defendants.

These factors in combination in my view mean that this is an exceptional case where, subject to a final argument advanced by Mr Chambers, it would be appropriate to award the defendants their costs of the permission hearing.

The final argument raised by Mr Chambers is that neither element of the costs should be awarded in favour of the defendants because of the public interest of the points in issue on this claim. However, it is only in exceptional circumstances that courts have very occasionally declined to award costs which would otherwise be found to be due, on the basis that a judicial review claim has raised issues of general public importance.

In my view, there is an inter-relationship here between the merits of a claim and an assessment of the public interest. As I have indicated this was a hopeless claim. It was not one which raised real arguments of law which it was in the public interest to have ventilated in court proceedings.

In my judgment, this is not a claim in relation to which it is appropriate for the burden in costs to be borne by the taxpayer. It is not an exceptional case such as would justify a refusal to award costs in favour of the defendants which would otherwise on ordinary principles be awarded in their favour.

For these reasons I would award the defendants their costs of preparing the acknowledgment of service and their costs of the oral permission hearing.

I agree.