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

Whether a body is a public authority under section 6 of the Human Rights Act 1998 is fact-sensitive. A political party’s election of its leader is a private act. Important indirect public consequences do not change that character, even where the party has a Commons majority and the Prime Minister resigns mid-Parliament. The constitutional process has distinct stages: party election, incumbent Prime Minister’s advice and the Sovereign’s appointment. The latter stages do not transform the first into a public function. Party autonomy in a free and pluralistic society reinforces the conclusion, subject to applicable legal constraints such as anti-discrimination rules.

The resignation of the incumbent Prime Minister in July 2022 triggered a Conservative Party leadership election. Tortoise Media requested anonymised information about the Party’s membership and election safeguards. The Party declined to provide the information, maintaining that the election was a private matter.

Lang J refused permission for judicial review on the papers. Following an oral hearing, Fordham J again refused permission and held that the Party was not exercising a public function: [2023] EWHC 3088 (Admin). Stuart-Smith LJ subsequently granted permission to bring the claim for judicial review instead of granting permission to appeal. The Court of Appeal retained the substantive claim. The central issues were whether the Party was a public authority for section 6 of the Human Rights Act 1998 and whether Tortoise could rely on Article 10 of the European Convention on Human Rights to obtain the information.

The Court of Appeal dismissed the claim for judicial review. Singh LJ gave the leading judgment, with which Dingemans LJ and Vos MR agreed.

1. Statutory gateway. The question whether a body is a public authority under section 6(3)(b) of the Human Rights Act 1998, and whether section 6(5) applies to a particular act, is fact-sensitive. It is distinct from the question of amenability to judicial review, although judicial-review authorities may inform the statutory analysis. The nature of the particular act remains decisive.
2. Constitutional stages. The appointment process comprises three conceptually distinct stages: the Party’s election of its leader; advice by the incumbent Prime Minister to the Sovereign; and the Sovereign’s appointment of the Prime Minister. The latter two involve public functions, but that does not alter the private character of the first. Constitutional conventions are not rules of law enforceable by the courts, although courts may recognise them when deciding legal questions: R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.
3. Application to the Party. The Party’s leadership election was a private act. Its important indirect consequences, the Party’s Commons majority and the mid-term resignation of the Prime Minister did not transform it into a public function. Datafin [1987] QB 815 did not assist Tortoise. That case concerned a regulatory body performing an important public duty, with governmental and statutory underpinning and no adequate private-law remedy. Its reasoning was context-specific and could not be extended to this voluntary political association.
4. Party autonomy. In a free and pluralistic society, political parties should be able to adopt their own rules for electing leaders without undue state interference. Courts should not impose constraints which Parliament has not imposed, subject to applicable legal rules such as prohibitions on discrimination.
5. Unresolved issues and procedure. The Court did not decide whether the Sovereign’s appointment of a Prime Minister is non-justiciable, because the claim failed at the public-function gateway. It therefore did not need to decide the Article 10 issue in Magyar Helsinki Bizottság v Hungary (2020) 71 EHRR 2 or the related issue concerning precedent under the Human Rights Act 1998. The Court added procedural guidance that, after a High Court refusal of permission, the Court of Appeal may grant permission for judicial review under CPR 52.8(5), but should consider whether the substantive claim belongs in the High Court or requires a rolled-up hearing.

• Court of Appeal (Civil Division). Having granted permission to bring judicial review instead of permission to appeal, the Court retained the substantive claim and dismissed it, holding that the Party was not exercising a public function: [2025] EWCA Civ 673.
• High Court, Administrative Court. Lang J refused permission on the papers. Fordham J refused permission after an oral hearing and held that the Party was not exercising a public function and was not amenable to judicial review: [2023] EWHC 3088 (Admin).