I’m sorry, we didn’t see that coming Minister…

Spluttering outrage was probably the ministerial reaction to the latest legal challenge funded by money raised through the online platform CrowdJustice. The claimant is Mr Ciaran McClean who describes the Conservative-DUP Confidence and Supply Agreement as a bribe and will challenge it in the High Court. Whilst most coverage has inevitably focused on the group’s other ground – that the pact violates the Good Friday Agreement – there are some interesting lessons to be learned from this novel use of the Bribery Act 2010. On 10^th July Mr McClean posted on the CrowdJustice website to say his lawyers have now been instructed to issue proceedings.

It is important to note that the challenge is not a prosecution – no minister or government official is being accused of the commission of a crime. Rather, the challenge is presumably to the legality of the Confidence and Supply Agreement based on the fact that it violates the Bribery Act.

Crucial to the challenge is the breadth of the legislation. An offence under section 1 simply requires the offender to offer, promise or give a “financial or other advantage” to another person in circumstances where either (a) they intend someone to perform a relevant function improperly or (b) they know or believe that the acceptance of the advantage would itself be improper. The definitions of “relevant function or activity” include “any function of a public nature” (and therefore the holding of political office). Performance of a function or activity is “improper” if that function or activity carries with it an expectation of good faith or impartiality or involves being in a position of trust and one or more of those expectations is breached. It does not matter that the person receiving the “financial or other advantage” is not the person who performs the function or activity improperly.[1]

In the case of the Confidence and Supply Agreement, it is clear that a relevant function is being performed by both Conservative and DUP politicians by virtue of their political office and that money (a cool £1 billion) is being both offered and given. The fact that it is to be received by persons in Northern Ireland other than DUP politicians who signed the deal is irrelevant. The only bar to criminal liability would therefore be that the performance by the DUP of its public functions (i.e. voting with the Conservatives in Parliament) is not improper (i.e. does not breach an expectation of good faith etc.). Presumably the Claimants will argue that voting a particular way in return for funds going to your community breaches an expectation of good faith. Equally, the government will no doubt insist that securing funds and investment for their constituents is precisely what politicians are supposed to do and the whole thing is just normal parliamentary activity.

On one view, the government’s position seems strong. After all, the only people to whom an individual MP can be expected to act with good faith or impartiality are their own constituents. It is doubtful whether the residents of Northern Ireland would consider it to be “in good faith” to spurn massive inward investment. On the other hand, the Claimant may have a point if you believe that MPs have duties not just to their constituents but to the country as a whole. As a sovereign body, Parliament is supposed to vote in the interest of the whole nation and MPs swear allegiance to the monarch, not their constituents. Ultimately, whether “votes for cash” is a breach of good faith depends on whether you view things from a local or national perspective (which our political system relies on being roughly aligned).

Moreover, under certain circumstances, the mere giving or receipt of an advantage can constitute an offence, without improper performance. Section 1(3) of The Bribery Act makes it an offence to offer, promise or give a “financial or other advantage” in circumstances where receipt of such an advantage would itself constitute improper performance of a relevant function or activity by the recipient. Section 2(3) makes it an offence to request, agree to receive or accept any advantage where to do so would inherently be improper. Clearly, the £1.1bn is not being provided to the DUP or its members, but rather for infrastructure in Belfast. However, the broadband internet, schools and hospitals which that money provides are very likely personally to benefit DUP parliamentarians, even if indirectly. The argument may seem tenuous, but equally, the term “financial or other advantage” was intended to be very broad.

Most gallingly for the current administration, this challenge is an example of the Bribery Act doing precisely what it is supposed to – bringing scrutiny to deals involving serious money at all levels of our public institutions. One legal concept that won’t be rearing its (very familiar) head in Court is dishonesty. The case of R v Ghosh [1982] EWCA Crim 2 sets out that behaviour is only dishonest if it falls below the standards of ordinary standards of reasonable and honest people and, crucially, that the defendant knew his actions fell below those standards. This concept has been the saving grace of many a defendant accused of handing out wads of cash or brown envelopes, which is precisely why it wasn’t included in the Bribery Act. Prosecutors and politicians believed that having to prove dishonesty would be too high a bar and result in those offering wrongful incentives escaping justice. Lack of dishonesty would have been a watertight defence for the government and the DUP because there was absolutely no deception about the deal. It was (and is) publicised, discussed and commented upon at length. No one could have suggested that anyone involved in the deal thought they were doing anything wrong by the standards of ordinary people. Sadly for the Prime Minister, the rigour of the Bribery Act makes this irrelevant.

Despite all this the government is likely to meet any potential challenge by pleading some form of exceptionalism – Parliament business is fundamentally different to commercial activity and politicians simply couldn’t cut the deals they need to without offering hard cash to communities or sectional interests. Whatever technical merit this argument is unattractive. To suggest that politicians should be excepted from the laws they make for everyone else risks raising eyebrows  (including some on the bench) to the rafters.

A key aim of the Bribery Act (assisted by the fact that it covered a very broad range of conduct and did not require proof of dishonesty) was to encourage caution among large corporate entities. A host of internal policies, training programmes and press releases prove the success of the legislation in this regard. What is surprising is that the political establishment did not blaze the trail in this area. It would have been quite possible for the draftsman to include exceptions for political activity. This was not done, meaning that the Bribery Act applies equally to those in Westminster as to multinationals striking deals in sub-Saharan Africa. Could it be, possibly, that those in high political office thought the law they were making could never apply to them?

At the time of writing, the coverage of this challenge has waned and it may be that the case will not be brought. However, that may be, even the hint that deals over resources between elected politicians could be challenged as violations of the Bribery Act should have rattled cages in Westminster. Those in power would do well to remember that to the dictum “Be ye ever so high, the law is above you” there are no exceptions.

[1] See s.1(4) of the Bribery Act 2010.