“What a fool I was. I was only a puppet, and so was Ulster, and so was Ireland, in the political game that was to get the Conservative Party into power.”

Edward Carson, leader of the Ulster Unionists during the Home Rule crisis, 1921

Amongst Theresa May’s list of growing concerns is a potential landmark legal challenge to her deal with the Democratic Unionist Party (“DUP”). A Green party politician who stood for the general election in West Tyrone, Ciaran McClean, alleges that Theresa May’s deal is unlawful as it breaches the terms of the Good Friday Agreement. Mr McClean’s solicitor, David Greene, also acted for Deir Dos Santos in Miller and Dos Santos v Secretary of State for Exiting the European Union [2017] UKSC 5 (“Miller”).

The letter sent on behalf of Mr McClean states that any agreement between the DUP and the Conservative party would compromise the Government’s independence. This in turn would breach the reasonable expectation of Mr McClean and citizens of Northern Ireland, found in article 1(v) of the Good Friday Agreement, that the Government will act with “rigorous impartiality”.

At the outset of talks with the DUP Sir John Major said that a potential deal risked alienating armed republicans and loyalists and causing resentment in other parts of the UK if the Government made promises to spend large amounts of public money. This has been echoed by politicians across the political spectrum, who have also warned that such a confidence and supply arrangement with the DUP risks destabilising the fragile peace that has been achieved in Northern Ireland.

There is little doubt that this agreement is controversial, but the more difficult question is whether Mr McClean will be successful in arguing that this confidence and supply agreement between the DUP and the Conservatives breaches the Good Friday Agreement.

The legal challenge

The deal between the DUP and the Conservative party means that the DUP’s ten elected MPs will back the Government on confidence votes and budget or supply votes, preventing Mrs May’s party from being brought down by motions of no confidence. As part of this deal, more than £1 billion in extra funding has been pledged to Northern Ireland over two years.

The Good Friday Agreement has been instrumental in quietening the Troubles in Northern Ireland, comprising of three strands that govern the political relationships between Northern Ireland, the UK and the Republic of Ireland. The potential legal challenge focuses on article 1(v) of the 1998 Good Friday Agreement, which states that the UK and Irish governments:

“affirm that whatever choice is freely exercised by a majority of the people of Northern Ireland, the power of the sovereign government with jurisdiction there shall be exercised with rigorous impartiality on behalf of all the people in the diversity of their identities and traditions and shall be founded on the principles of full respect for, and equality of, civil, political, social and cultural rights, of freedom from discrimination for all citizens, and of parity of esteem and of just and equal treatment for the identity, ethos and aspirations of both communities.”

Should Mr McClean proceed to the High Court it is this phrase of “rigorous impartiality” which will require interpretation.

Rigorous impartiality

The central purpose of the Good Friday Agreement was as a negotiated document which sought to end political violence. As such, it is important to note that the vague wording of some of the provisions of the Good Friday Agreement has been described as “constructive ambiguity”. This constructive ambiguity helped guarantee acceptance of the Agreement and meant that certain more contentious debates could be postponed.

Equally the Good Friday Agreement sits somewhere between a domestic and an international law instrument. Aspects of the Good Friday Agreement were given legal force through the Northern Ireland Act 1998. As a UK statute ordinary rules of constitutional interpretation apply. However, the Northern Ireland Act is still an unusual piece of legislation. The long title of the Act states that it is to “make provision for the government of Northern Ireland for the purpose of implementing the Agreement reached at multi-party talks on Northern Ireland”. Lord Bingham said of the Act in Robinson v Secretary of State for Northern Ireland  [2002] UKHL 32 (“Robinson”):

“The 1998 Act does not set out all the constitutional provisions applicable to Northern Ireland, but it is in effect a constitution… the provisions should, consistently with the language used, be interpreted generously and purposively, bearing in mind the values which the constitutional provisions are intended to embody.”

In Miller, the Government’s written submission cited Robinson and stated that “[t]he interpretation arrived at was informed by the fact that the UK constitution allows a flexible response to events as they develop and took account of the need to prevent the collapse of the Northern Ireland Government”. (Appendix, para 3) This represents a purposive approach to interpretation and gives some indication of how the standard of “rigorous impartiality” may be interpreted.

The standard of rigorous impartiality is central to the operation of the Good Friday Agreement and to the concept of self-determination for Northern Ireland which is at the core of both the Good Friday Agreement and the British-Irish Agreement. The exercise of Northern Ireland’s self-determination must, by definition, be made by Northern Ireland’s political actors. Therefore, the Government that possesses sovereign power (whether that be the UK or the Republic of Ireland) “shall” do so on an impartial basis. That impartiality is the bedrock on which Northern Ireland’s self-determination rests and is exercisable.

Concerns

As Lord Bingham noted in Robinson, it would no doubt be possible, in theory at least, to devise a constitution which could predetermine political contingencies. However, such an approach would not be consistent with ordinary constitutional practice. In the absence of certainty as to political contingencies, “constitutional arrangements retain scope for the exercise of political judgment they permit a flexible response to differing and unpredictable events in a way which the application of strict rules would preclude.” It is questionable whether this confidence and supply arrangement reflects the ‘spirit’ of the commitment in the Good Friday Agreement.

However, it is arguable that the duty to act with rigorous impartiality is different both in nature, and in scope, than a prohibition on political parties from the UK, the Republic of Ireland and Northern Ireland from forming an association whether formal or informal. Such an analysis of article 1(v) could lead to a difficult practical situation, where no Government could rely upon the votes of a political party from Northern Ireland.

A simpler reading of article 1(v) might be that the purpose was to prevent the Government from discriminating against any community in Northern Ireland or limiting the people of Northern Ireland’s capacity for self-determination. The primary undertaking therefore of article 1(v) is that the governments of the UK and the Republic of Ireland agreed to recognise the legitimacy and primacy of the majority of Northern Ireland to determine their system of government and exercise rigorous impartiality to ensure that ability is not limited.

The potential political ramifications of Mr McClean’s case are substantial. Northern Ireland represents under 3% of the UK’s population and so its political influence is limited – at the very least numerically. Until now the assumption has been, and the possibility would be, that each MP, whether from England, Wales, Scotland or Northern Ireland was not limited in terms of which party or members of Parliament they could support. Such an assumption is called into question if a Northern Irish MP, or political party, cannot support another political party or the Government itself.

This interpretation also aligns itself with the majority’s approval of Dicey in Miller, that the UK constitution is “the most flexible polity in existence” – something developed over time in a pragmatic as much as in a principled way. While the Good Friday Agreement allows flexibility to interpret the language purposively, this interpretation of article 1(v) may also give effect to the values that the drafters intended to embody. It might be considered counter-intuitive to conclude that the drafters of the Good Friday Agreement would have limited Northern Ireland’s potential political influence in this way.

Equally the deal as struck is arguably too broad in language alone to represent a strike against “rigorous impartiality”. There are of course clear features of a deal between the DUP and the Conservatives that could have raised strong concerns regarding rigorous impartiality – for instance, any undertaking made on behalf of the Government that no unity referendum would be held during the term of the confidence and supply agreement. Such an undertaking would be clearly aligned with the DUP’s objectives and clearly at odds with the promise of rigorous impartiality. It is also possible that a coalition agreement would have further complicated the issue.

However, no such undertakings has been made. As such, the confidence and supply agreement as drafted appears to fall short of the kind of breach envisaged by article 1(v).

Nevertheless, an important concern is that in the past the Government has been able to cast itself as an independent intermediary between political parties in Northern Ireland. If article 1(v) demands lack of favouritism towards one side or another, this position is clearly called into question by the DUP’s unity with the Conservatives. There is a justifiable concern that the Conservatives may in actuality or in appearance lack, in the words of Sir John Major, the ability to act as an “honest broker”.

This is particularly at a time when power-sharing talks in Northern Ireland remain unresolved. If the Conservatives’ majority is dependent on the DUP, this may affect their ability to assume this role of an “honest broker” in this context. If no deal is reached by Monday, Northern Ireland faces the possibility of direct rule from Westminster. With the DUP and Sinn Féin at a standstill over nationalist demands for an Irish language Act Sinn Féin’s Conor Murphy criticised the confidence and supply agreement between the DUP and Conservative party for making an agreement more difficult. If a devolved government cannot be formed, the responsibility for governing Northern Ireland would be returned to Westminster. This is where a Government’s impartiality, with a Government majority relying on the DUP for support, becomes difficult. The Social Democratic and Labour Party’s (SDLP) loss of its three seats further compounds the lack of any Irish nationalist presence in Westminster.

Conclusion

Lord Bingham in Robinson stated that constitutional arrangements retain scope for the exercise of political judgment in a way which the application of strict rules would preclude. The Good Friday Agreement certainly reflects this. What it has gained in constructive ambiguity it has sacrificed in the way of strict rules.

Theresa May’s confidence and supply agreement is an exercise in “political judgment”, felt by many to be an exercise in poor political judgment. However, this is a different problem to a breach of the Good Friday Agreement.

Recent political events, including Northern Ireland’s contrasting vote to remain in the European Union, emphasise the fractured political divide which continues in Northern Ireland. This deal with the DUP certainly risks highlighting that divide, even if it falls short of breaching the Good Friday Agreement. However, Theresa May and her Government ought to exercise caution. There are certainly ramifications of being in such a close political relationship with the DUP which could violate the terms of the Good Friday Agreement. This caution is necessary, lest Theresa May risk the transition from a poor political judgment to an unlawful one.

Ruth Keating is a research assistant at the Law Commission of England and Wales and a future pupil barrister at 39 Essex Chambers.

(Suggested citation: R. Keating, ‘Rigorous Impartiality and a Coalition of Chaos’, U.K. Const. L. Blog (3rd Jul 2017) (available at https://ukconstitutionallaw.org/))