High Court Clarifies Political Party's Internal Elections Not Subject to Judicial Review

Citation: [2023] EWHC 3088 (Admin)
Judgment on

Introduction

In the recent case of Tortoise Media Limited v Conservative and Unionist Party, the High Court of Justice grappled with the complex interplay between political processes, human rights, and the scope of judicial review. At the core of the decision was whether a political party’s internal leadership election, specifically when it directly impacts the appointment of a Prime Minister mid-term, can be subjected to judicial scrutiny as a public function. This article analyses the provided case law summary, elucidating the legal principles applied, and highlights the Court’s reasoning in arriving at its decision.

Key Facts

The Conservative Party conducted an internal election process to select a new party leader who, by consequence of the Party’s majority in the House of Commons, would become the Prime Minister. Tortoise Media sought information regarding the election process, invoking common law rights and Article 10 of the European Convention on Human Rights (ECHR). The request was declined by the Party, leading Tortoise Media to seek judicial review, arguing that the election constituted a public function, thus making it subject to legal duties of transparency under the Human Rights Act 1998 and subject to judicial review.

The case hinged on several critical legal principles:

Judicial Review and Public Function

Central to Tortoise’s claim was that the Conservative Party’s conduct in selecting a new party leader mid-term was a “function of a public nature” under Section 6(3)(b) of the Human Rights Act (HRA) and subject to judicial review. In evaluating this, the Court referenced “JR Public Function” and “HRA Public Function,” signifying a judicial reviewable public duty and a duty under the HRA respectively.

Reviewability of Prerogative Powers

Drawing from earlier cases, notably R (Miller) v Prime Minister, the Court considered whether the Party’s actions could be equated to the exercise of a prerogative power, which might render the selection process subject to judicial oversight. The Miller case was particularly pertinent as it dealt with the scrutiny of the Prime Minister’s advice to the Sovereign, a constitutional act under prerogative powers.

Right to Information

The claimant relied on the precedent set in Magyar Helsinki Bizottság v Hungary, arguing that Article 10 ECHR imposed an obligation on the State, or its surrogate, to grant access to information held by a public authority. Tortoise contended that the Conservative Party, in the specific instance of selecting a leader who would invariably become Prime Minister, should be considered a ‘hybrid public authority’ for such purpose.

Outcomes

The Court decisively rejected the proposition that the Party’s internal selection of a leader constituted a public function. It determined that the function concluded once the leader was chosen and the known consequences (such as advising the Sovereign) were the domain of well-established convention rather than the direct exercise of governmental power. The Court concluded:

  • No JR Public Function was found, as the Party’s internal selection process did not amount to exercising a prerogative power and hence was not subject to judicial review.
  • No HRA Public Function was identified, given that the prerogative power of appointing a Prime Minister was vested with the Sovereign and not the Party.
  • The claimant’s Article 10 argument was considered arguable but ultimately failed because it hinged on the same public function premise that the Court rejected.

Conclusion

The case of Tortoise Media Limited v Conservative and Unionist Party clarifies that the activities of a political party in the context of an internal leader selection process, while consequential at a national level, do not transmute into state actions subject to judicial review or HRA obligations. The decision reinforces the separation between political party operations and the exercise of official governmental functions. As such, the information rights sought under Article 10 ECHR were deemed inapplicable, thus reaffirming that not all functions with public implications equate to public duties that can be challenged under judicial review or HRA standards. The High Court provided a clear demarcation between the internal workings of political entities and the external legal scrutiny that is triggered only by the exercise of public governmental functions.

Related Summaries