Tuesday 20 June 2017

Judicial Review of a Confidence and Supply Arrangement

An interesting story appeared in The Guardian today, in which it emerged that there may be an attempt to judicially review any agreement entered into by Theresa May's Conservative and Unionist Party and the Democratic Unionists. Having failed to secure an overall majority in the June election, May needs the DUP, at a minimum, to abstain on all major votes if she is to command the confidence of the House of Commons and to get crucial Parliamentary bills passed.

The central contention of those seeking to challenge a "confidence and supply" arrangement is that, if the UK Government were to make concessions of particular political or constitutional salience, it would undermine the duty of the British Government to be "rigorously impartial" as to the exercise of sovereign power with respect to the territory. This undertaking is contained in Article 1(v) of the Belfast Agreement.

I believe this challenge will fail, for several reasons:

This isn't the Government acting

A confidence and supply arrangement is not entered into by the UK Government. It is instead a political agreement, between political parties, to vote in certain ways in a Parliamentary assembly. There is, I think, an arguable case that a coalition agreement might be treated differently, because it forms the pretext-upon which government ministers are appointed from different parties. Ministers are clearly a part of the government and the presence of DUP ministers might reasonably have been thought an act of governmental partiality were the Irish nationalist community not also involved in the arrangement.

Crucially, however, commitment in the Good Friday Agreement is concerned with the obligation of governments to remain impartial; it does not commit every political party, or every member of the legislature, in the UK or Republic of Ireland to avoid alliances, even formal, with one or more Northern Irish political parties where there is common purpose or interest. The distinction between acts of government and acts of parliamentary caucuses is an important one.

The inference of the contrary position - that this is a governmental and not a party-political act - is that no government can ever rely-upon the voting or abstention of a sectarian political party from Northern Ireland in order to pass a piece of legislation. This, intuitively, does not seem tenable. It would defeat the whole point of Northern Ireland returning representatives to the Westminster Parliament in the first place. That they are there is for a purpose: while Government may be expected to operate with impartiality in how it exercises its power with respect to the six counties and the devolved government and two communities there, Parliament is not so bound.

The content of an agreement would not in fact compromise "rigorous impartiality"

Even if it is rejected that a confidence and supply arrangement is party-political rather than governmental, it still falls to show that the government's conduct would be unlawful. "Rigorous impartiality" is a bespoke phrase in the Good Friday Agreement. But what does it actually mean? It does not mean, surely, that a British Prime Minister cannot express a personal view that Northern Ireland should, in any border poll, choose to remain a part of the United Kingdom. The Conservative and Unionist Party, and its two Prime Ministers since the Agreement came into force, have never sought to conceal precisely this view. The clue is, in part, in their party's name. Clearly, then, adherence to a position on that question does not itself constitute falling short of "rigorous impartiality".

For an arrangement to compromise the impartial exercise of "the power of sovereign government" then, there must be something more substantial to it. The mere fact that a political agreement exists, and that it involves a sectarian party, does not mean that the UK Government is, by necessity, now partial concerning the question of "the power of sovereign government" in Northern Ireland. If an agreement saw the UK Government's programme undertake to act in ways that would (have a realistic prospect of) very clearly picking sides on an issue of contention being addressed at Stormont, or altered the protection of fundamental rights or some other part of the Belfast Agreement designed to protect the rights of nationalists/republicans in the six counties, we might reasonably conclude that "rigorous impartiality" has been fallen short of.

This would have to mean something like caving to a demand on parades or placing obstacles in the way of an Irish Language Act. Such commitments would likely, however, be in neither of the political interests of the Tories or the DUP. They are unlikely to be part of the agreement precisely because of how they would be received politically, regardless of any legal obligations.

This is not a domestic legal obligation

Perhaps more practically, the "rigorous impartiality" provision is in all likelihood not a (domestically) justiciable issue, or at any rate a subject matter to which the exercise of governmental power attracts considerable judicial deference. The Good Friday Agreement is in essence a treaty between two sovereign states. Its provisions, in and of themselves, are not legally binding in a UK court. The Good Friday Agreement does, however, have a slightly special relationship with the law in the UK in that it is directly referred to in the Northern Ireland Act as the multi-party, political, basis for the restoration of Northern Irish devolution. This allows judges to, among other things, take into account the intentions of the parties in that agreement when interpreting constitutional statutes and the content of their provisions. This makes the GFA different from, say, the Calman Commission's Report, the Edinburgh Agreement, or the Smith Commission proposals in Scotland, all of which would likely be less easily used as constitutionally relevant materials for judges interpreting provisions of the Scotland Act.

Importantly, however, the Good Friday Agreement is not enshrined in domestic law. At best it represents political undertakings that frame the pretext for the Northern Ireland Act itself. The Northern Ireland Act does not commit the UK Government to behave with "rigorous impartiality" on this issue, nor does any other statute. If there is a potential breach of law here, it is of international law and not of domestic constitutional law.

This is important because, unless otherwise expressly authorised, it is not within the gift of the domestic courts of the UK to prevent a minister from undertaking their office's powers and duties (as they relate to foreign affairs) in contravention of international law. The prerogative power would be particularly important here, as might political forms of constitutional accountability (like Parliament's scrutiny of any deal). But as a matter of domestic law there is no hard constraint. This is the important difference between a judicial review in this case and, say, the judicial review in R (Miller) v Secretary of State for Exiting the European Union where what was being contested was the existence of a legal power in domestic law to make a notification under a treaty.

Why an overtly common-law challenge would (probably) also fail

Any argument then, would rely-upon a contortion of common-law grounds of review. Perhaps they might maintain that, by failing to take into account the relevant considerations of the undertakings of the GFA, the Prime Minister had exercised her power improperly. Perhaps even they might argue that no reasonable Prime Minister properly applying their mind to the question would conclude that the grave constitutional (if political) undertaking of rigorous impartiality was compatible with whatever agreement was reached.

Even if these issues were regarded, in principle, as justiciable, it is difficult to see how a court would interrogate the decision so meticulously as to annul that of the original decision-maker (the Prime Minister). It would be very easy on her part to show that her decision has seriously contemplated the implications on the peace process, even if one might politically and quite radically disagree with her.

Perhaps more importantly, courts are generally deferential when it comes to constitutional disputes. The generous reading-in of materials in Robinson v Secretary of State for Northern Ireland, for instance, had the effect of relaxing apparently plain legal obligations to allow for political negotiations to take precedence during the crisis. A court that went out of its way to say that a Prime Minister was acting irrationally for going into an agreement of this sort would in effect be doing the opposite: giving legal properties to negotiations concerned with profound high-politics.

Parting thoughts

This (potential) case is interesting from my perspective because my doctoral thesis is concerned, in part, with the judicial treatment of constitutional secession negotiations. I look at questions like, for example, what a court would do if the UK, Canadian or Spanish Governments refused to enter into secession negotiations to honour a (constitutionally valid) referendum result on the part of Scotland, Quebec or Catalonia to secede. Even in the Canadian case, where their Supreme Court articulated constitutional duties to "negotiate" a response to a clear result, however, they stopped short of saying that they would intervene in a dispute of that nature if those duties were not honoured.

It seems to me that the duty to uphold rigorous impartiality in Northern Ireland is of a similar order. The Courts will not intervene except in the most clear-cut cases of interests being compromised, and even then they will do so on the basis of overt statutory authority, not by reading-in the Good Friday Agreement.

This is not to diminish the political importance of those undertakings. We should have grave concerns about any government, whether formally or informally, that is dependent upon sectarian parties to get its legislative agenda through. Constitutionally, however, at best these references to the Belfast Agreement seem to me to restate the constitutional tensions that already exist. They do not solve them.


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