Wednesday, 13 September 2017

Under attack - the Conservative - DUP "confidence and supply" deal

Updated 29th October

Following the General Election 2017 and the weakening of the Conservative Party's position in the House of Commons, a "confidence and supply" deal was arranged between the Conservative Party and the Democratic Unionist Party (DUP) in Northern Ireland - Telegraph 26th June.

The agreement is available HERE and it is notable that the DUP agreed to support the Conservative government on
all motions of confidence, the Queen's Speech, the budget, finance bills, supply and appropriation bills, estimates, legislation relating to Brexit and national security.  Support on other matters will be on a case by case basis.   The agreement is linked to financial promises  - UK government financial support for Northern Ireland.  For example, the financial support package includes £75m per year for 2 years to help provide ultra-fast broadband for Northern Ireland.  The announcement of the deal gave the impression that the government had simply allocated the money for Northern Ireland without recourse to Parliament.

"Confidence and Supply" arrangements have been infrequent in the UK.  The Labour Party under Prime Minister James Callaghan and the Liberal Party (leader David Steel) entered into one for a short period 1977-78 - (Lib-Lab Pact).  When the agreement ended, the Labour Party continued in government until they were replaced by the Conservative Party (led by Margaret Thatcher) in the 1979 General Election.   During the period 2010-15 a Conservative-Liberal Democrat Coalition government operated.

The "Good Friday Agreement" challenge:

One legal challenge to the confidence and supply agreement is based on the government's role under the Good Friday Agreement.  This is discussed in a previous post - 21st June 2017 - State Opening - Confidence and Supply - Concerns over Good Friday Agreement and see The Guardian 9th July and The Guardian 8th September 2017.  The latter report states that the High Court may begin hearing the case on 26th October.

Update 29th October - the High Court refused permission to proceed with the application for judicial review - The Guardian 26th October

The Gina Miller challenge:

A further challenge was commenced by Gina Miller and raised the question of the government seeming to commit public funds without parliamentary approval - The Guardian 11th September - Tory-DUP £1bn payment needs Parliament's approval after Gina Miller challenge.

"Challenged by the campaigner Gina Miller about the legal basis for releasing the funds, which have not yet been made available, the Treasury solicitor, who heads the Government Legal Department, said it “will have appropriate parliamentary authorisation”, adding: “No timetable has been set for the making of such payments.”  Replying to a legal letter from Miller and the Independent Workers Union of Great Britain (IWGB), Jonathan Jones said the government intends to use “long-established procedures, under which central government requests the grant of money by the House of Commons” in order to pay out the funds it promised the DUP in the controversial agreement in June.

Parliament and Money:

ALL expenditure has to be approved by Parliament.  In the 17th century, the Stuart Kings raised money in various ways such as "Ship Money."  Since the Bill of Rights 1688, "levying money for or to the Use of the Crowne by pretence of Prerogative without Grant of Parlyament for longer time or in other manner then the same is or shall be granted is illegal."  Parliament thereby controls the raising of money for use by the government.  Parliament, principally the House of Commons, controls the supply of money to the government.

The central historical and constitutional principle, common to both taxation and expenditure, is that the Crown (in practice Ministers) requests money.  The House of Commons controls the amount of money raised or spent.  The Lords respect the primary role of the Commons in relation to taxation and expenditure.

Gina Miller's challenge has required the Treasury to confirm that additional funds have not yet been made available for Northern Ireland and that they will only be released when parliamentary procedures have been followed.  The Treasury Solicitor's reply indicates that "long-established" procedures will apply.  For more on financial processes see this November 2015 pamphlet issued to assist Parliamentary Counsel with the topic of financial resolutions required for Public Bills.

In April 2017, the House of Commons Procedure Committee  reported - Authorising government expenditure: steps to more effective scrutiny.   This noted that - "Control of Government spending proposals by the House of Commons is the foundation of parliamentary control of the executive. The House must do this job effectively, and must be seen to do it effectively."

For the year 2017-18 see Supply and Appropriation (Main Estimates) Act 2017.

At the Second Reading of a Bill it is common for there to be a "Money Resolution" and a "Ways and Means Resolution."  Those resolutions for the European Union (Withdrawal) Bill may be seen at the end of the Hansard Report of Day 2 of the Second Reading.

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