One of the big political stories of this summer was the agreement reached between the Conservative Party and the Democratic Unionist Party on 26 June 2017. The two political parties entered into a so-called “confidence and supply” agreement which meant the DUP agreed to support the Government on all motions of confidence, including the Queen’s Speech and the Budget. Furthermore, the DUP agreed to support the UK Government on legislation relating to Brexit. Further support on other matters would be agreed on a case by case basis.
The deal struck in June is now the subject of High Court judicial review proceedings in London. The Administrative Court will hear an application by Northern Irish Green activist Ciaran McClean seeking judicial review of the June “votes for money” agreement. The hearing on 26 October is a preliminary hearing for “permission”. If permission is granted, then a full hearing is likely to take place a few weeks later.
What is the basis for Mr McClean’s challenge? He claims the confidence and supply deal is in breach of the Good Friday Agreement under which the UK Government undertook to exercise its power in Northern Ireland “with rigorous impartiality on behalf of all the people in the diversity of their identities and traditions”. He firmly believes that the June deal puts the Good Friday Agreement and the “hard won peace” in severe danger.
In addition, Mr McClean is running an argument under the Bribery Act 2010, claiming that the deal is unlawful as a corrupt arrangement. The Bribery Act came into force in July 2011 in order to modernise the law in this area. According to the Government’s own published guidance, bribery “is defined as giving someone a financial or other advantage to encourage that person to perform their functions or activities improperly… So this could cover seeking to influence a decision-maker by giving some kind of extra benefit to that decision-maker rather than by what can legitimately be offered…” Mr McClean claims that the arrangement that has been put in place is “straight bribery – money for votes”.
The judicial review challenge is being crowdfunded and Mr McClean is close to reaching his £100,000 target.
This is not the only challenge the Government has faced relating to the DUP Agreement. Balfour+Manson has been acting for businesswoman Gina Miller – well-known for bringing the case which led to the Supreme Court ruling that the Brexit vote had to be ratified by UK parliament legislation – and a trade union, the Independent Workers Union of Great Britain, in connection with another judicial review challenge to the deal struck in June.
This is based upon a claim that the Conservative-DUP agreement was improper and discriminatory. The extra funding would be contrary to the Equality Act 2010 and the Human Rights Act 1998. This challenge is yet to progress beyond the “Pre Action Protocol” stage. The UK Government’s Legal Department wrote to Balfour+Manson on 29 August in response to their pre-action protocol letter. This response has been the subject of much discussion, especially in Northern Ireland, arising out of two particular matters. Firstly, the Government’s lawyers, in their response to Balfour+Manson, indicated that the £1 billion in extra funding for Northern Ireland will need to be approved by the Westminster Parliament.
Ms Miller told the press that this aspect of the deal had not been widely known. There was no mention of this seemingly crucial issue when the agreement was announced in June. This raises the issue as to whether some Conservatives, who may be unhappy with the DUP deal, may take “disruptive” action.
Secondly, the response received by Balfour+Manson from the Government Legal Department made it clear that “no timetable has been set for the making of such payments”. This statement appears to be at odds with the message conveyed by the DUP to its supporters that this badly needed extra money for health and education, roads and infrastructure in Northern Ireland would be available shortly. Indeed, Gina Miller has questioned whether there is any space in the Government’s legislative programme for a separate vote on the extra £1bn. There is doubt as to whether the payment could be included in the Budget in November.
For the moment, the decision of the Administrative Court on 26 October is keenly awaited. A successful judicial review challenge could render the confidence and supply agreement unlawful and prevent any of the extra funding reaching Northern Ireland. Such an outcome would undoubtedly heap further pressure on Theresa May’s minority Government.
Gordon Deane is a Partner with Balfour+Manson LLP