The news organisation Tortoise Media is planning a legal challenge against the Conservative Party over the way in which it is choosing the next prime minister.
James Harding, editor and co-founder of Tortoise, sent what’s called a pre-action protocol letter yesterday to Darren Mott OBE, the party’s chief executive. The letter is headed “proposed claim for judicial review” and requests a response by 5pm today.
It refers back to a letter Harding sent Mott on 17 August, asking nine detailed questions about apparent weaknesses in the party’s internal arrangements for electing a leader.
Harding made the point that Tortoise had recently registered Archie Harding as a party member, even though the latter Harding is a pet tortoise. However, Harding the editor acknowledged that “only people who have been members for three months can vote in the leadership election”.
Mott replied to Harding at 5pm last Friday, just before the long weekend. Declining to answer Harding’s questions “in detail”, Mott said:
The election of the leader of the Conservative Party is a private matter for the members of the party under its constitution…
The appointment of the prime minister is a matter for the Sovereign. By convention she is likely to ask the person recently elected as the leader of the party, especially as that is the most probable recommendation of the outgoing prime minister.
If that person were not likely to be able to command a majority of the House of Commons, it is possible for the Sovereign to ask someone else to take on
the role.
A public body?
Crucially, Mott asserted that the Conservative Party was not a public body and does not carry out public functions.
That’s important because individuals and organisations that do not exercise public functions are not subject to judicial review. Under the civil procedure rules, claims for judicial review deal only with the lawfulness of “an enactment; or a decision, action or failure to act in relation to the exercise of a public function”.
However, Harding argues in his pre-action protocol letter that the Conservative Party is exercising public law functions when it elects a leader who is likely to become prime minister.
The party’s status is important for a second reason.
Under the Human Rights Act 1998, it is unlawful for a public authority to act in a way that is incompatible with the human rights convention. A public authority includes “any person certain of whose functions are functions of a public nature”.
Exactly what that means was deliberately left unclear. Harding argues that the Conservative Party is exercising functions of a public nature when electing a leader who is likely to become prime minister.
If the party is a public authority for these purposes, it must comply with article 10 of the human rights convention. This includes the right to “receive and impart information”, subject to various exceptions. Harding argues that this means he has a right to the information he has requested.
He also argues that he is entitled to the information under judge-made common law principles, relying a ruling from the Supreme Court in 2014 in a case brought by a Times journalist against the Charity Commission.
The nine questions
On this basis, he is seeking a “mandatory order that the Conservative Party provides a substantive and complete response” to his nine questions. In summary, these requested
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Anonymised data on the demographic of the party’s membership.
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An explanation of whether, and if so how, the party keeps its membership database up to date, ensuring that it sends ballot papers to correct addresses.
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Anonymised data on variations in member numbers over time, presented quarterly over the past 10 years.
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An explanation of the party’s system of compliance.
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The number of efforts at infiltration that the party has thwarted.
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An explanation of any third-party compliance mechanisms in place to ensure that only those eligible to vote do so, that they vote only once each, and that the election is not manipulated.
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An explanation of how the communications agency GCHQ came to offer advice on the distribution of Conservative Party ballots.
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An explanation of why non-UK citizens who join the party abroad are eligible to vote.
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Confirmation of whether party members under the national voting age can vote in the election of party leader.
The public interest
Harding’s letter says the public interest in the requested information being provided to Tortoise for the purposes of publication is overwhelming:
The prime minister, elected by an unincorporated association, will have powers unconstrained by parliament, including authorising military action, appointing the cabinet and vetting all significant public appointments including to the House of Lords. So far, the only information released by the Conservative Party to the press about its members is a rough estimate of their number in the past: no figure has been given for the current total, even approximately. The most recently released figure represents barely 0.3 per cent of the electorate.
For the avoidance of doubt, Tortoise does not seek to challenge whether the leader of the Conservative Party should be elected in this way; but rather Tortoise seeks to ensure that the process being undertaken by the Conservative Party meets fair and reasonable standards of transparency and accountability.
Tortoise has not asked the Conservative Party to disclose names, or any identifying personal data, of party members. Instead, Tortoise asked that the party is willing to be accountable, that the voting register is independently verified, that there is some assurance that the voting is not susceptible to foreign involvement and that the Conservative Party is not unnecessarily secretive.
Had this information been provided the Conservative Party would have served the vital public interest of maintaining public confidence in the election, the outcome of which is fundamental to the democratic process.
Tortoise is represented by Alan Payne QC and Aaron Moss of 5 Essex Court.
Comment
News has been described as “something that somebody doesn’t want printed; all else is advertising”. A news organisation, even a “slow news” organisation like Tortoise, is fulfilling its function by asking the Conservative Party searching questions. These questions demand answers. The issues raised should not be a matter for the Conservative Party alone.
It is understandable that Harding is contemplating legal action in the hope that this will give him the information he has been denied. But it is important to understand that information is the only thing he is seeking.
This is not an attempt to stop the election of the Conservative leader. There is no question of the courts interfering with the constitutional process. As Mott rightly says, the appointment of the prime minister is a matter for the Queen. She will invite whoever she is advised can command a majority in the Commons. That means, at the moment, the person who leads the Conservative MPs in parliament. And the choice of that leader, their party has decided, is ultimately a matter for its members.
Although Harding has been asking for information since 8 August, he cannot realistically expect a substantive response today to the letter he sent yesterday. Normally, two weeks are allowed. And although he has raised the possibility of issuing proceedings later this week, any hearing would be some months away: the leadership election is almost over and another one is not in prospect.
And that, of course, assumes he decides to issue proceedings. “Tortoise is a small newsroom,” he writes, “and taking on a political party is no small task”.
Likely to fail
The blogger and solicitor David Allen Green accurately observed yesterday that Harding’s case “is likely to fail”.
Green commented:
The (likely) legal fact that judicial review is not the appropriate way of getting such information does not take away from this being information which should be publicly known.
Indeed, that Tortoise is resorting to judicial review indicates — if not demonstrates — that the special regulatory regime for political parties is deficient. And it is that special regulatory regime that should change — rather than the ambit of judicial review be extended.
Political parties are not private clubs, where there is a limited public interest in their internal affairs. Political parties are a central feature of our political system.
They are not part of the “state” as such (though views may differ) but they are part of the oil that enable the engines of state to work.
So one can sympathise with the objective of this legal claim, even if one is doubtful of its legal merits. That objective should be achieved by changes in legislation, and not by judicial expansion.
This is certainly not a matter that should be left to the judges. They might conclude that someone like Harding, who is not a member of the Conservative Party, does not even have the necessary standing to bring a claim. They would surely want to avoid getting involved again in any dispute over the Crown’s prerogative powers. And it’s by no means clear that a political party is a public body or that it exercises public functions.
Equally, I hope the very real problems identified by Harding can be resolved without legislation. Once this election is over, the Conservatives — as well as the UK’s other political parties — should review their internal election procedures and publish full details of what these involve. In a democracy, nothing less will do.