R Ciaran McClean v First Secretary of State

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeLord Justice Sales,Mr Justice Lewis,Or
Judgment Date26 Oct 2017
Neutral Citation[2017] EWHC 3174 (Admin)
Docket NumberCO/3220/2017

[2017] EWHC 3174 (Admin)





Royal Courts of Justice


Lord Justice Sales


Mr Justice Lewis


The Queen on the Application of Ciaran McClean
(1) First Secretary of State
(2) Her Majesty's Attorney General


Mr D Chambers QC, Mr J CooperQC andMr E Granger (instructed by Edwin Coe LLP) appeared on behalf of the Claimant.

Mr J Eadie QC, Mr J CoppelQC andMr S Aughey (instructed by the Government Legal Department) appeared on behalf of the Defendants.

(as approved)

Lord Justice Sales

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:

(1) The claimant says that the confidence and supply agreement will result in expenditure of public funds for improper purposes, namely for the advantage of the Conservatives as a political party.

(2) The claimant says that the confidence and supply agreement is made in violation of the Bribery Act 2010, with the result that the relevant decisions should be quashed as unlawful on that ground as well.


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.

Ground (1): allegation that there will be use of public expenditure powers for an improper purpose pursuant to the confidence and supply agreement.


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 UnionCase [1995] 2 AC 513 and Porter v Magill [2002] 2 AC 357 – supports it. The Fire Brigades Unioncase 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...

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