Suppose​ Emmanuel Macron’s new party had found itself short of a majority in the National Assembly, and Macron had done a deal with the Corsican nationalists that in return for their votes he would steer well over a billion euros of subsidy to the Corsican economy. The French judge to whom I put this started laughing: ‘No – impossible – unconstitutional – unthinkable.’ So I told him about the confidence and supply agreement.

The June general election left the Conservative Party eight seats short of a majority. Without the support of the Northern Irish Democratic Unionist Party, which won ten seats, Theresa May would have been unable to form a government. Hence the Agreement between the Conservative and Unionist Party and the Democratic Unionist Party on Support for the Government in Parliament. It is undated but is intended to last, subject to possible revision, ‘for the length of the Parliament’. It is signed by Gavin Williamson MP and Jeffrey Donaldson MP on behalf of the two parties. In brief, it provides that in return for the DUP’s support on all significant parliamentary measures, including those relating to Brexit, Northern Ireland will receive ‘additional support’ in the form spelled out in the annex.

The annex, entitled ‘UK Government Financial Support for Northern Ireland’, begins: ‘This section sets out the financial support the UK Government would be prepared to make available to Northern Ireland.’ It goes on to speak repeatedly in the name of, and on behalf of, the Westminster government:

The UK Government will allocate £200 million per year for two years and with sufficient flexibility as to the choice of project to ensure the Executive is able to deliver the York Street Interchange Project and other priorities … The UK Government will therefore contribute £75 million per year for two years to help provide ultra-fast broadband for Northern Ireland … In order to target pockets of severe deprivation … the UK Government will also provide £20 million per year for five years … The UK Government will therefore allocate an additional £50 million a year for two years to enable the Executive to address immediate pressure in health and education … The UK Government will allocate £100 million per year for two years to support the Northern Ireland Executive’s delivery of its priority of health service transformation … The UK Government will provide £10 million per year for five years [to support mental health delivery].

The annex ends by committing the UK government to allowing ‘any remaining funding from previous allocations for shared education and housing to be dispersed [viz disbursed?] flexibly’.

The collapsing of state into party, so that the one speaks for the other, is perhaps the single most distinctive feature of polities like China and North Korea. One of the distinctive features of the United Kingdom’s constitution, by contrast, is that the government – that is to say the body of ministers holding office under the Crown – possesses neither legislative nor judicial powers. If ministers want someone punished, they must get the police to bring the suspect before a court and abide by the outcome. If they want to levy taxes or change the law, they have to secure a majority for it in Parliament. And if they want to spend public money, they must have Parliament’s authority to do so. This is why section 58 of the 1998 Northern Ireland Act provides: ‘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 amounts as he may determine.’ Money provided by Parliament is voted in the form of government estimates and, if approved, becomes part of a statutory ‘supply’. By this means, the ‘confidence’ generated by the DUP’s votes in the Commons will bring more than a billion pounds in subventions to Northern Ireland.

The problem is that the confidence and supply agreement is worded as if these constitutional mechanisms did not exist. It promises subventions which neither a political party nor a government by itself has the legal power to deliver.

In July a crowd-funded application for judicial review of the agreement – more specifically, of the government’s decision to enter into it – was issued in the High Court on behalf of Ciaran McClean, a Northern Ireland Green Party politician. It alleged that the Conservative Party had entered into the agreement as a proxy for the government (something the wording makes all but inescapable), and contended that this contravened both the governmental obligation of impartiality spelled out in the Good Friday Agreement and the 2010 Bribery Act. The first contention was dropped because it was accepted that the Good Friday Agreement lacked the force of law, but it was replaced by a more specific argument that, as with the Westminster Council homes-for-votes case which undid Shirley Porter, it introduced favouritism into the discharge of government functions. The bribery case was pursued, along with a further allegation that the DUP agreement constituted a corrupt bargain by which votes were traded for money.

The government’s lawyers were swift to spot the constitutional defect in the agreement: without parliamentary authority, none of the subventions promised by it could lawfully be made. So the principal plank of the defence, when the case came before the High Court in October, became the very thing the agreement had blithely ignored: ‘It is accepted by the defendants, indeed positively submitted by them,’ Lord Justice Sales said, ‘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.’ Once Parliament gives its authority, the courts are out of the picture. And since the purpose of the agreement is to assure a government majority, Parliament’s assent to the handing over of an extra £1.2 billion to one particular part of the United Kingdom may well be regarded as a foregone conclusion. But Westminster is not Whitehall, and unexpected things can happen there – for instance, if Parliament is eventually asked to endorse a hard Brexit which restores the Irish border. What price will the DUP exact for that? Will it simply prove a vote too far? Might Sinn Féin be provoked to lift its boycott and allow its MPs to take their seats and vote?

Thus the failure of the high court challenge was not a rout. In law as in life, reculer pour mieux sauter is a useful technique. The government was rescued from the unconstitutionality of the DUP agreement by its defence that, in effect, the agreement could not lawfully mean what it said. The confidence and supply agreement, it seems, is a thing writ in water.

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