In advance of the election of Liz Truss as leader of the Conservative Party and her appointment as Prime Minister of the United Kingdom in September 2022, Tortoise Media sought some answers from the Party as to how the leadership election was conducted. Their request was declined, leading Tortoise Media to issue a judicial review challenge, represented by Lewis Silkin. We explore the issues arising in the recent High Court judgment.

Our client, Tortoise Media ("Tortoise"), specialises in “slow news” - in-depth, investigative journalism on key issues. Tortoise issued a claim for judicial review against the Conservative and Unionist Party (the “Conservative Party”) after the Party declined to provide information requested by Tortoise ahead of the 2022 leadership election.

Background

Following the resignation of Boris Johnson as Prime Minister in July 2022, the Conservative Party held a leadership contest. This involved a vote by Conservative Party MPs to identify two suitable leadership candidates, followed by a vote by members of the Conservative Party to determine which of the two candidates should become leader. Liz Truss was successful and became the Prime Minister on 6 September 2022.

Prior to this, in August 2022, Tortoise had written to the Conservative Party requesting information in response to nine questions about the 2022 members’ vote. Tortoise's article sets out the background to that request, including that Tortoise successfully registered a number of fictitious new Conservative Party members (including Archie, a pet tortoise of James Harding (founder of Tortoise)) in advance of the members’ vote without any apparent checks having been carried out. The information requested is set out at paragraph 14 of the High Court judgment, but in summary, it included questions relating to the make-up and management of the Conservative Party membership, eligibility of members to vote and attempts at infiltration of the Party membership.

The Conservative Party refused the request. It stated that, “The Party is not a public body and it does not carry out public functions”, the selection of a candidate was not a public function, the election of the leader of the Party was “a private matter for members of the Party” and the appointment of the Prime Minister is a matter for the Sovereign.

Tortoise issued a claim for judicial review of that decision to refuse to provide the information. Judicial review is a process available to have the courts ensure that decisions of public bodies are made lawfully and fairly. Decisions of public bodies and bodies exercising public law functions can be challenged.

The Claim

The High Court had to consider:

1. Whether the Conservative Party was exercising a public function when it carried out the election of Liz Truss as leader (and therefore as Prime Minister), which would mean the decision to withhold information could be reviewed;
2. If so, whether Tortoise had a right to information about the election process from the Conservative Party under Article 10 of the European Convention of Human Rights ("ECHR").

In respect of the first question, Tortoise argued, amongst other things, that the function of the Conservative Party electing a new leader mid-term (and with a majority of the MPs in the House of Commons) meant that that successful candidate would be identified in advice to the Sovereign as the person who should be appointed Prime Minister.  The fact that whoever the Party members’ chose would be the de facto Prime Minister meant that the process was therefore an intrinsically public function. That function should therefore attract public law and human rights standards of accountability and transparency. Tortoise sought to rely on R (Miller) v Prime Minister [2019] UKSC 41, in which the act of the Prime Minister advising the Sovereign regarding the use of prerogative powers to prorogue Parliament was reviewable and the question as to the lawfulness of the exercise of that power was left open.

In respect of the second question, on the basis that the Conservative Party was exercising a public function, Tortoise relied on the European Court of Human Rights case of Magyar Helsinki Bizottság v. Hungary (Case No.18030/11 (2020) 71 EHRR 2 (8.11.16) (at §167)) to argue that the information requested by Tortoise accordingly constituted “State-held information" and that failure to provide that information would interfere with the public interest in that information being made available. Tortoise argued that the principles established in Magyar would apply with the consequence that Tortoise, as a media organisation, had a right to receive the information requested under Article 10 of the ECHR so as to be able to report on it as a matter of public interest (and that the Conservative Party would be bound under section 6 of the Human Rights Act 1998 not to violate that right). Further, the refusal of the Conservative Party to provide the information would be amenable to judicial review for violating Article 10 (namely, the right to freedom of expression including freedom to receive and impart information and ideas without interference by public authorities).  The fundamental importance of the right to information, particularly for the media, was highlighted by the Supreme Court in Kennedy v. Charity Commission [2014] UKSC 20 in the following terms: 

“Information is the key to sound decision-making, to accountability and development; it underpins democracy and assists in combatting poverty, oppression, corruption, prejudice and inefficiency. Administrators, judges, arbitrators, and persons conducting inquiries and investigations depend upon it; likewise, the press, NGOs and individuals concerned to report on issues of public interest.”

The decision

The court did not accept that there was a public function being undertaken by the Conservative Party which was capable of being supervised by the court by way of judicial review. 

The court noted that the specific function of the election of a new leader of the Party was completed in the evening of 5 September 2022, the day before the recommendation to the Sovereign on whom should be appointed as Prime Minister. The leadership election in itself did not result in the election of a new Prime Minister. The fact that the individual chosen would be recommended to the Sovereign as Prime Minister was, said the court, “by virtue of an external function of adoption”, which was a well-established convention - a consequence of the function of electing a leader, but a separate function in itself.

The court noted Tortoise's position that the specific function of the Conservative Party in electing a new leader should be subject to public scrutiny and that judicial review should be available in the context of the prerogative power (including powers held exclusively by the Sovereign) of appointment of the Prime Minister. However, the court found that there is a sufficient constitutional safeguard in place, namely Parliamentary accountability and scrutiny of the appointed individual, which renders the need for judicial review in these circumstances “inapt and unnecessary”. The court agreed with the submission that, “An inability [of the Prime Minister] to command [the confidence and support of the House of Commons] could therefore mean that a new mid-term Prime Minister does not in fact last long in office”. The court did not agree that the need for scrutiny extended to the function of a political party selecting a new leader.

Important implications

In his concluding remarks, Fordham J held that Tortoise’s argument that the right of freedom of expression under Article 10 extended to the obtaining of information from public bodies and entities undertaking public functions (a hybrid public authority), was arguable. In other words, if Tortoise had succeeded in arguing that the Conservative Party had been performing a public function, the court would have accepted that there was an argument to be had at a substantive hearing (relying on Magyar) on the issue of whether the information requested by Tortoise accordingly constituted “State-held information" and that failure to provide that information would interfere with the public interest contrary to Article 10 of the ECHR. 

As recently summarised by one of our team:

"This is a finding of general significance in that it opens the door to challenging the majority decision of the Supreme Court in Kennedy ([2014] UKSC 20) - that Article 10 does not impose a freestanding positive obligation of disclosure on public bodies - and thereby to have recognised at a domestic level (including under the common law) the right for journalists/NGOs to obtain public interest information from those exercising a public function for the purposes of accountability, openness and transparency.”

Tortoise Media is seeking permission to appeal the decision. 

The team

Giles Crown and Fraser McKeating led the Lewis Silkin team on behalf of Tortoise. Alan Payne KC and Aaron Moss were instructed as counsel.