Tortoise Media Limited, R (on the application of) v Conservative and Unionist Party

A political party’s selection of a leader is not a public function merely because the selection has a known constitutional consequence. The party’s internal choice remains distinct from the Sovereign’s external appointment of the Prime Minister on advice. A function which could never be entrusted to a statutory public authority, such as choosing a political party’s leader, strongly indicates that it is not governmental in nature.

The possibility that advice concerning appointment of a Prime Minister might be reviewable does not make the prior party selection reviewable. Article 10 access-to-information principles therefore cannot be engaged unless the defendant is exercising a relevant public function. A claim relying on that premise may be rejected at the permission stage where it has no realistic prospect of success.

Tortoise Media sought judicial review of the Conservative and Unionist Party’s refusal to answer questions about its 2022 leadership election. It relied on the common law, Article 10 ECHR and the Human Rights Act 1998, arguing that the Party was exercising a public function when it selected a new leader while holding a majority in the House of Commons.

The claim was initially refused on the papers by Lang J. Fordham J considered whether the Party’s internal leadership selection was a judicial-review public function or a function of a public nature under section 6(3)(b) of the Human Rights Act 1998, and whether the principles in Magyar Helsinki Bizottság v Hungary applied.

1. Claim dismissed. The claim lacked viability because its public-function premise was unsustainable. The Party’s refusal of information was not amenable to judicial review, and no Article 10 obligation arose.
2. The court accepted that public-function questions require attention to substance, practical reality, context and the specific function being performed. But the specific function here was the Party’s selection of its new leader. It was not executive or governmental power. The later appointment of the Prime Minister was an external act of adoption by the Sovereign, on advice, pursuant to constitutional convention. A function is not equated with its known consequence.
3. The Party did not exercise, use or stand in the shoes of the prerogative power to appoint the Prime Minister. Its internal choice and the external appointment remained distinct functions.
4. The fact that a statutory public authority could never perform the function was a useful reality check. Choosing a political party’s leader necessarily belonged to the autonomy of the Party and could not be placed in the hands of an independent appointments commission. The statutory arrangements for Scottish and Welsh First Ministers reinforced that distinction.
5. The reasoning in R (Miller) v Prime Minister did not assist. Even if advice concerning appointment of a Prime Minister could in some circumstances be reviewable, that could not make the prior Party selection reviewable. Any reviewable executive act would concern the adviser’s advice to the Sovereign, not the Party’s internal selection.
6. The court accepted, as arguable, that information held by a hybrid public authority could fall within the approach in Magyar Helsinki Bizottság v Hungary. That point could not assist because the public-function premise failed. The court rejected the application for indemnity costs and ordered payment of the Defendant’s Acknowledgment of Service and hearing costs, assessed in aggregate at £30,000 on the standard basis.

The claim was initially refused permission on the papers by Lang J. Fordham J considered the renewed permission-stage claim and dismissed it, holding that it had no realistic prospect of success.