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

Political agreements concerning parliamentary support and the formation of government are not ordinarily justiciable. Where expenditure commitments are subject to parliamentary Estimates and appropriation legislation, parliamentary approval supplies the legal authority for payment of the funds. The common-law improper-purpose principle applies to statutory powers, construed in their statutory context; it does not impose a general restriction on the exercise of parliamentary voting rights or on expenditure authorised by Parliament. Voting by MPs in accordance with a confidence and supply agreement does not, without more, involve bad faith, a duty to act impartially, or a position of trust for the purposes of the Bribery Act 2010. Permission for an unarguable judicial review claim may be refused, with costs of an oral permission hearing awarded where exceptional circumstances exist.

The claimant, a Northern Ireland politician, sought judicial review of the Government’s confidence and supply agreement with the Democratic Unionist Party and associated spending commitments. He alleged that the commitments involved public expenditure for an improper political purpose and that the agreement constituted an offence under the Bribery Act 2010.

The claim was heard as an oral inter partes application for permission. The central issues were whether the proposed expenditure and parliamentary votes were unlawful or justiciable, and whether MPs voting in accordance with the agreement could be performing a relevant function or activity improperly.

1. Permission refused. Neither ground was properly arguable. The confidence and supply agreement and the announcement of spending commitments were political acts concerning the conduct of parliamentary business.
2. All expenditure of public funds required parliamentary authority. The proposed Northern Ireland funding would be presented through Estimates or supplementary Estimates and ultimately authorised by an Appropriation Act. Section 58 of the Northern Ireland Act 1998 therefore authorised the Secretary of State to pay on money voted by Parliament for the relevant purposes. There was no additional common-law restriction of the kind asserted by the claimant.
3. R v Secretary of State for the Home Department, ex p Fire Brigades Union [1995] 2 AC 513 concerned statutory abrogation of prerogative power and did not establish a general common-law rule controlling expenditure authorised by Parliament. Porter v Magill [2002] 2 AC 357 concerned statutory powers which had to be exercised for their proper statutory purposes. It did not govern MPs’ parliamentary voting rights, which were not statutory powers subject to an equivalent statutory duty.
4. Parliamentary privilege also precluded review of how MPs voted or inquiry into whether they voted pursuant to the agreement, as illustrated by R (Wheeler) v Prime Minister [2008] EWHC 1409 (Admin).
5. The arrangements did not arguably engage the bribery offences. Voting in accordance with the agreement would not breach expectations of good faith or impartiality under section 3 of the Bribery Act 2010, and voting did not place an MP in a position of trust by virtue of performing that activity. The court did not need to decide whether parliamentary voting was a public function under section 3(2)(a).
6. The defendants were awarded the costs of preparing the acknowledgment of service and attending the oral permission hearing. The unusually lengthy inter partes hearing, the hopelessness of the claim and the claimant’s persistence constituted exceptional circumstances under the Mount Cook principles.

First-instance judicial review proceedings. Permission to apply for judicial review was refused by the Divisional Court, with costs awarded to the defendants.