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Struck out: Case challenging Tory/DUP deal falls at first hurdle

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The grounds for judicial review weren’t ‘properly arguable in a court of law’

A legal challenge claiming the Conservatives’ deal with the Democratic Unionist Party (DUP) breaches the Good Friday Agreement (GFA) and the Bribery Act 2010 has not made it past its first hearing. It seems the courts were unwilling to get involved with what was, let’s face it, a case of inherently political subject matter.

The case, spearheaded by Green Party politician Ciaran McClean, sought to challenge what the claimant called the “votes for money” Tory/DUP agreement in the Divisional Court.

Readers will recall in the weeks following the 8 June snap election result, the DUP signed a deal to form a majority government with the Conservatives. As part of that deal, the DUP gained £1 billion in funding — £33 per taxpayer — for hospitals, roads and schools in Northern Ireland in return for DUP support in key parliamentary votes. Today’s claim was issued on 10 July, just two weeks after the deal with struck.

The basis of the claim was that any agreement between May and the DUP was unlawful because it’s a violation of the rigorous impartiality demanded by the GFA and undermines British independence.

It’s difficult to deny GFA’s status as a crucial political building block of peace in Northern Ireland, but today Lord Justice Sales and Mr Justice Lewis simply were not convinced by McClean’s legal arguments.

Sitting in courtroom 1 of the Royal Courts of Justice, the application for permission to apply for judicial review was today refused. Sales said neither ground relied upon by McClean was “properly arguable in a court of law”.

While McClean has fallen at the first hurdle, it’s not for lack of a good lawyer. McClean instructed David Greene, senior partner at Edwin Coe LLP, to help him fight the case. As for his advocates, McClean was represented in court by Dominic Chambers QC (Maitland Chambers), John Cooper QC (25 Bedford Row) and Edward Granger (Maitland Chambers). He also managed to crowdfund more than £90,000 to take the case to court.

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30 Comments

Not Amused

Wasted costs?

(8)(3)

Anonymous

£108.90

(1)(4)

Anonymous

Kool FM snitch

(1)(2)

Corbyn. Symphathiser

I’m going to guess less than £1 billion.

(3)(4)

Anonymous

Free – just like your impersonation.

(4)(0)

Anonymous

The way to stop a lot of these crowdfunded legal challenges which are generally based on completely spurious grounds would be to order wasted costs against the lawyers for representing an “unarguable” case and the claimant individually for double the crowdfunded amount each. Oh, and refer the lawyers to the regulators for breach of ethics along lines of negligent advice that the case was arguable.

(10)(7)

SingaporeSwing

DEFINITELY

(3)(0)

Anonymous

Agree. Although as criminal practitioner, I’d like to see wasted costs awarded against police officers, CPS Reviewing Lawyers and Complainants for the 50% of cases that never go beyond the police station stage and are NFAed and a change to the Prosecution of Offences Act, that gives the police and CPS immunity in costs for any prosecutions they chose to bring which are unsucessfull.

(5)(1)

Harry

SO where does all the crowdfunded money go?????

(5)(0)

Anonymous

Can’t wait till the same happens to the challenge to Art 50 notification.

(8)(3)

Cockney Geezer

Cor! Like the back ends of two knackered horse

(1)(1)

Anonymous

Establishment judges race to protect Tories shocker.

(3)(21)

Anonymous

Like they did with the article 50 challenge?

(3)(0)

Anonymous

Theresa May is a crook.

DUP are a bunch of barbarians.

(7)(10)

Juries hold up trials and cost too much money...apparently, according to some new textbooks!

And Workers of the World, Unite…blah, blah, can’t you at least wait until at least November 5, Comrade Bala?!

(0)(1)

Anonymous

The madness of crowds. On the Green Party’s website is promise for “the introduction of a universal basic income”. Clearly, this is intended to bribe the dull-witted into voting Green: has McClean reported his party for offences under the Bribery Act?

(11)(5)

Anonymous

Don’t be silly, it’s a policy to enforce the right to an adequate standard of living.

(1)(8)

Anonymous

Eh? The “right to an adequate standard of living” can exist only as a result of legislative action, which in turn can only be secured by the election of politicians supportive of such legislation. If they secure election and thus the political power to implement such legislation by promising goodies to electors, they are in no different position from deals between political parties. Bribes were offered to the Lib-Dems to secure the 2010 coalition, but no one was mad enough to suggest this presented a target for legal action.

(2)(1)

Cocklecarrot J

If the case was not linked to Brexit, it may illicit some intelligent commentary instead of the unfortunate emotional ranting.

Politicians always do deals based on money. At constituency level, an MP will lobby for a hospital or a bridge or something. Is such action an offence under the bribery act?

Any rational thought would say no, it is not.

However, if the same MP pocketed a bung from the contractor, in the building of said bridge or hospital, then we are in different waters.

Offering £1B to northern Ireland infrastructure, in return for DUP support, would similarly be very difficult to characterise as bribery, no matter how grubby the deal may seem to some.

Or else, the offering of low corporation tax by the likes of the Republic of Ireland, to the likes of Apple Corp. would also be viewed as “bribery”. (And it is so viewed by some.)

Deals are struck all the time, between individuals, between companies and between political entities – even governments – on the basis of an exchange of finance and/or goods. Or even territory, which is an ultimate financial resource.

In some cases, a Prime Minister will seek the support of some political faction, by giving a cabinet position to a member of that faction. Is this deal-making, or is it bribery?

The definition of a “bribe” needs to be fairly clear and detailed. Arguably, it should include straight-forward and undeniable damage/prejudice to a third party. For example a contractor paying a bribe to circumvent a tender process, and thereby deny competitors an even playing field.

Did BAE pay “bribes” as part of the huge military contracts it won in Saudi? Or were these “commissions”? Nobody was hurt here, except the Saudi treasury, but they are not complaining. (Is that because that treasury happened to be controlled by the same people who received those “commissions”?)

Apart from a few clear-cut, black-white cases, the judgement of bribery can be highly subjective.

The deal between the Conservative party and the DUP, based on the expenditure of £1B of UK taxpayer money on NI infrastructure, no doubt enrages lots of people who see it as corrupt. Why should political parties be allowed to engage in such deals? If the deal was based on legislation – “you support me on this bill and I will support you on that one” – then people may not howl as loud. But the bottom line is, in both cases, the Conservative and DUP parties combined, form a majority in the HoC, and that gives them the power, under UK law, to spend whatever they want, in whatever fashion they want, and to pass or block whatever legislation they like or dislike. That is the way the system works.

(6)(1)

Quentin Hugefee QC

Thanks to HH Cocklecarrot J for raising the tone of the discussion.

The Bribery Act 2010 defines a bribe as a financial or other inducement that makes the receiving party “act improperly”.

And, yes, other than clear-cut cases, “improper act” is open to very subjective interpretation.

If I am parked on a red line and give a fiver to a traffic warden to look the other way, then that is a bribe. No doubt about it. The traffic warden has acted improperly, as a direct result of the fiver.

If a couple are going through a rough patch in their relationship, and I am waiting for the break-up coz I like the girl, but then the guy she is with remembers her birthday, buys her jewellery and flowers, takes her to Paris for the weekend and they are back together, has he bribed her? Because I was aggrieved I may say yes he has, and she is a cheap, short-term-thinking so-and-so for having taken his “bribe”.

The deal between the DUP and the Tories is legit, as the learned judge says, because that is the way the system works. This is parliamentary democracy. These two parties, combined, have a majority to do whatever they like.

The DUP did not act improperly. They acted in the interests of their constituents. It is their job, as the elected representatives of those citizens, to get them the best deal possible. This is deal-making; not bribery.

Having said that, it may be legit, but it does leave a bad taste. Face it: if the Tories had won a thumping majority, the thought of spending a billion quid on NI would never have crossed their minds. And if I had found a parking spot, I would never have thought of paying a fiver to the traffic warden. So this looks like paying to get away with illegal parking (in this case, parking inside 10 Downing street) but, in fact, it is not.

(4)(0)

Juries hold up trials and cost too much money...apparently, according to some new textbooks!

“They” really got themselves too carried away with their own PR/Twitter spin about the Art 50 challenge (sorry, he/she who must not be named and all that!) being all about upholding “the rule of law” and “Parliamentary sovereignty”, and took it more than just a little too far this time!

Forget about “the rule of law”, the ACTUAL LAW says that bribery is a criminal offence (and a criminal offence ONLY)…and s. 10 of 2010 c. 23 (Bribery Act 2010) clearly says “NO proceedings for an offence under this Act may be instituted in England and Wales except by or with the consent of—(a) the Director of Public Prosecutions, or (b) the Director of the Serious Fraud Office.”

“Upholding the rule of law” and all that…except when the law doesn’t actually suit them!

(0)(0)

Juries hold up trials and cost too much money...apparently, according to some new textbooks!

Deals made inside the HOC (whether they in fact took place instead inside 10 and 11 Downing Street or not) are NONjusticiable [in the courts] anyway…Parliamentary sovereignty means Parliament is and can be the ONLY court and all that for party-political parliamentary deals!

(1)(2)

Juries hold up trials and cost too much money...apparently, according to some new textbooks!

Far too many words…what the American courts would have said: “Nonjusticiable political question” (and the U.S. doesn’t even have absolute Congressional sovereignty!)

“Political corruption”…no such general criminal offence per se on the statute books, not even a common law criminal offence! And when did HMG suddenly become a “body corporate”, a “corporation sole” and “a public authority” for the purpose of the courts?!

The GFA is not actually “incorporated” into domestic “English” legislation, hence having no force of law in “domestic” national law (per JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry (the International Tin Council case), 1989/90)…and the Northern Ireland Act 1998 only “caused it to be implemented” the terms of the Belfast Agreement (the formal name), without actually incorporating the Treaty as such.

There is absolutely NO such thing as a limited-liability crowdfunded legal challenge, Re Nortel Gesellschaft mbH (GmbH) (in the matter of the Nortel Companies, in the matter of the Lehman Companies and in the matter of the Lehman Companies (No. 2)) [2013] UKSC 52, [2014] AC 209, (Para) [89]. Only Parliament can legislate for limited liability for co-litigants on costs, despite what a certain prolific Twitter user (who shall remain nameless) might say on his or her own personal website!

Lord Neuberger: “In my view, by becoming a party to legal proceedings in this jurisdiction, a person is brought within a system governed by rules of court, which carry with them the potential for being rendered legally liable for costs, subject of course to
the discretion of the court.”

(1)(0)

Anonymous

UK law also says that they had to strike a coalition deal within a designated deadline and there is some question whether that condition was met.

(0)(6)

Anonymous

What law is that? You’re talking out of your arse

(4)(1)

Anonymous

Not true at all. In any event, there is no coalition.

(1)(1)

Juries hold up trials and cost too much money...apparently, according to some new textbooks!

NONjusticiable anyway even if indeed such an imaginary law actually existed!

(0)(1)

Me

There are no lawyers here folks. It’s a kiddie site. 3-12 yo

(1)(0)

Juries hold up trials and cost too much money...apparently, according to some new textbooks!

I would agree on your characterisation…those learned friends couldn’t even spell Magill right!

Can someone please fund ME to start an application for judicial review against the AG, for his failure to apply for a Section 42 order?!

(0)(0)

open B6z

Imagine if the lyrics of “Right Now” were “right here, right noww” haha

(0)(0)

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