Private Nature of Political Party Leadership Elections: Exclusion from Public Functions under the Human Rights Act 1998

Introduction

This commentary examines the Court of Appeal decision in Tortoise Media Ltd, R (On the Application Of) v Conservative and Unionist Party ([2025] EWCA Civ 673), handed down on 23 May 2025. The case arose when Tortoise Media (“the Claimant”) applied for the disclosure of anonymised data about the 2022 Conservative Party leadership election. The Party refused, contending that it was a private association not subject to public‐function obligations under section 6 of the Human Rights Act 1998 (“HRA”). Tortoise sought judicial review of that refusal. The central legal question was whether, in electing its leader whose result conventionally determines the next Prime Minister, the Party was exercising a public function for HRA purposes.

Key parties:

• Claimant: Tortoise Media Ltd, a journalistic organization seeking transparency.
• Defendant: The Conservative and Unionist Party, an unincorporated voluntary association.

Key issue: Does a ruling‐party’s internal leadership election, with foreseeable public consequences, count as a “public function” under section 6 of the HRA, thereby engaging positive obligations under Article 10 ECHR?

Summary of the Judgment

The Court of Appeal (Dingemans LJ, with whom Vos MR and Sir Geoffrey Vos agreed) dismissed Tortoise’s claim. It held that:

1. The Conservative Party is not a “core” public authority under the Freedom of Information Act 2000 and is not in the Schedule of that Act.
2. Under section 6(3)(b) of the HRA, a body is a public authority only if it performs functions of a public nature.
3. The Party’s leadership election (stage 1) is a private association act, distinct from (stage 2) advice given by the outgoing Prime Minister to the Sovereign and (stage 3) the Sovereign’s appointment of the Prime Minister.
4. Even though the election had clear public consequences by constitutional convention, its “nature” remained private under section 6(5).
5. No positive Article 10 obligation arose and the Party was not amenable to judicial review for the refusal to disclose membership data.

The claim was dismissed, reaffirming the autonomy of political parties in their internal governance unless Parliament explicitly subjects them to public‐law duties.

Analysis

Precedents Cited

• YL v Birmingham City Council [2007] UKHL 27: Structure of “public authority” under s 6 HRA and distinction between core public authorities and those with public‐nature functions.
• Aston Cantlow v Wallbank [2003] UKHL 37: Sensitivity of “public function” determination to the facts and the private‐act exception under s 6(5).
• Datafin plc [1987] QB 815: Recognised self‐regulatory bodies exercising public‐law functions as amenable to judicial review; introduced the “public law consequences” test.
• Beer v Hampshire Farmers' Markets [2003] EWCA Civ 1056: Dyson LJ’s broad criterion for judicial‐review amenability: sufficient “public element, flavour or character.”
• Miller 2 [2019] UKSC 41: Justiciability of prerogative advice leading to prorogation; distinction between personal prerogative and conventionally constrained functions.
• Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374: Lord Roskill on non-justiciable prerogative powers.
• Magyar Helsinki Bizottság v Hungary (2020) 71 EHRR 2: ECHR positive obligations under Article 10 to furnish information to media acting as public watchdogs.

Legal Reasoning

The Court’s reasoning unfolded in these steps:

1. Statutory framework (HRA s 6): Section 6(3)(b) makes unlawful any incompatibility with a Convention right by a person whose functions are of a public nature, subject to the private‐act exception in s 6(5).
2. Three‐stage constitutional process:
   – Stage 1: Party leadership election (private association governance).
   – Stage 2: Advice by outgoing Prime Minister to the Sovereign (public function by a minister).
   – Stage 3: Sovereign’s appointment of the Prime Minister (public prerogative).
3. Nature of the act test: Even though stage 1 had foreseeable public consequences, its intrinsic nature remained private. The “private‐act” exception in s 6(5) applies when the particular act is private, regardless of consequential public effects.
4. Limits of “public law consequences”: Datafin’s reference to “public law consequences” does not mean any public consequence suffices. That principle applied in a context of deliberate regulatory self‐regulation with statutory underpinnings—absent here.
5. Respect for political autonomy: In a pluralistic democracy, parties must be free to shape internal rules unless Parliament legislates otherwise or fundamental discrimination rules apply.

Impact

This judgment clarifies the boundary between private association activity and public‐law functions under the HRA:

• Political party autonomy: Internal leadership contests remain shielded from HRA public‐function obligations absent explicit statutory design.
• Judicial‐review scope: Confirms that foreseeable public consequences do not automatically convert a private act into a public function.
• Future information claims: Media seeking internal data from parties cannot invoke HRA positive obligations unless the party is performing a public‐law function.
• Constitutional convention: Distinguishes conventionally bound stages from private association governance, limiting judicial interference in core political processes.

Complex Concepts Simplified

• Public authority (HRA s 6): A body whose functions are of a public nature. It must act compatibly with Convention rights except when performing private acts.
• Private‐act exception (s 6(5)): Even a body with some public functions is not a public authority for a particular act if that act is private in nature.
• Judicial review: A procedure to challenge legality of decisions where a public body (or body exercising public functions) acts beyond its lawful powers.
• Positive obligation (Article 10 ECHR): Under certain circumstances, a body may be required to provide information to enable freedom of expression and public watchdog functions.
• Constitutional convention: Unwritten rules governing state behavior (e.g., the Sovereign appoints the individual most likely to command Commons confidence); not directly enforceable by courts.

Conclusion

The Court of Appeal’s decision in Tortoise Media v Conservative Party firmly establishes that political parties’ internal leadership elections, even when they determine the next Prime Minister by long‐standing convention, are private acts not subject to public‐function obligations under the HRA. By drawing a clear distinction between private association governance (stage 1) and constitutionally bound public functions (stages 2 and 3), the judgment safeguards party autonomy and limits judicial intrusion into core political processes. It also confirms that positive information duties under Article 10 ECHR cannot be invoked where no public‐law function exists. This precedent will guide future challenges seeking to extend judicial‐review reach into the internal workings of political organizations.