Factual and Procedural Background
The case concerns whether the Conservative and Unionist Party ("the Conservative Party" or "the Party") was exercising a public function when it elected its leader in 2022, for the purposes of section 6 of the Human Rights Act 1998 ("HRA"). The Claimant, Tortoise Media Limited ("Tortoise"), sought disclosure of information about the leadership election, which the Party refused.
Tortoise applied to the High Court for permission to bring a judicial review claim against the refusal. Permission was initially refused by two judges, Lang J and Fordham J, who held that the Party was not exercising a public function and thus not amenable to judicial review.
Tortoise then applied for permission to appeal to this Court. Instead of granting permission to appeal, Stuart-Smith LJ granted permission to bring the judicial review claim and reserved the substantive hearing to this Court, which is now considering the claim for judicial review directly.
Factual background includes the resignation of the incumbent Prime Minister in July 2022, triggering a Conservative Party leadership election. The election involved ballots by Party members, resulting in the election of a new leader who was then invited by the Sovereign to become Prime Minister.
Tortoise, through its editor and co-founder, conducted investigations including applying for Party memberships under various names to test the election’s safeguards. Tortoise requested anonymised data about Party membership and the leadership election process, which the Party declined to provide, asserting it was a private association not performing public functions.
The Court also considered expert evidence on constitutional conventions regarding the appointment of the Prime Minister, emphasizing that such conventions are not legally enforceable rules but political practices.
Legal Issues Presented
- Whether the Conservative Party was exercising a public function when it conducted its leadership election in 2022 for the purposes of section 6 of the Human Rights Act 1998.
- Whether the refusal to disclose information concerning the leadership election was lawful under the Human Rights Act and related principles.
- The justiciability of the appointment of the Prime Minister and the scope of judicial review over political party functions.
Arguments of the Parties
Appellant's Arguments (Tortoise)
- The Conservative Party was exercising a public function when it conducted the 2022 leadership election, given that the Party held an absolute majority in the House of Commons and the election directly led to the appointment of the Prime Minister without a general election.
- Tortoise argued that Article 10 of the European Convention on Human Rights imposes a positive obligation on bodies exercising public functions to provide information to the media acting in the public interest.
- Relied on the case of Magyar Helsinki Bizottság v Hungary to support the claim for a positive obligation to disclose information.
- Invoked the principle from Datafin that bodies exercising public law functions or whose functions have public law consequences may be subject to judicial review.
Respondent's Arguments (Conservative Party)
- The Party is an unincorporated association governed by its constitution and is not a public authority or body exercising public functions.
- The leadership election is a private matter for Party members and not an exercise of governmental or statutory powers.
- The appointment of the Prime Minister is a matter for the Sovereign, acting on advice from the incumbent Prime Minister, and is not attributable to the Party.
- Contended that the prerogative powers involved in appointing the Prime Minister are non-justiciable and distinct from the Party’s internal election process.
Intervener's Arguments (Cabinet Office)
- Submitted that lower courts must follow Supreme Court precedent and should not depart from established case law despite the Magyar judgment.
- Did not address the main issue of whether the Party was exercising a public function.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 |
Courts may recognize political conventions but cannot enforce them as legal rules. |
Used to explain that constitutional conventions concerning the appointment of the Prime Minister are not legally enforceable. |
| YL v Birmingham City Council [2007] UKHL 27 |
Definition of "public authority" under section 6 of the HRA and the distinction between core public authorities and bodies with some public functions. |
Guided the interpretation of whether the Party was a public authority for the purposes of the HRA. |
| R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993] 1 WLR 909 |
Determination that a private regulatory body was not amenable to judicial review as it did not exercise governmental functions. |
Referenced as an example of bodies not exercising public functions despite regulatory roles. |
| R (Beer) v Hampshire Farmers' Markets Ltd [2003] EWCA Civ 1056 |
Judicial review amenability depends on whether the body’s powers have a sufficient public element. |
Supported the analysis that the nature and context of the function determine public function status. |
| R v Panel on Take-overs and Mergers, ex parte Datafin plc [1987] QB 815 |
Self-regulatory bodies exercising public law functions or whose decisions have public law consequences may be subject to judicial review. |
Examined and distinguished; held not to apply to the Party as the Party’s election process was private and lacked statutory underpinning. |
| R (Miller) v Prime Minister [2019] UKSC 41 ("Miller 2") |
Justiciability of prerogative powers and limits on the exercise of such powers. |
Discussed in relation to the appointment of the Prime Minister and whether advice from the incumbent Prime Minister is justiciable. |
| Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 |
Certain prerogative powers are non-justiciable due to their nature. |
Referenced in arguments about justiciability of the appointment of ministers and prerogative powers. |
| R v Secretary of State for the Home Department, ex p. Bentley [1994] QB 349 |
Prerogative of mercy is justiciable. |
Used to illustrate that some prerogative powers are justiciable, but the Court did not decide on justiciability here. |
| Magyar Helsinki Bizottság v Hungary (2020) 71 EHRR 2 |
Positive obligation under Article 10 ECHR to provide information to media acting as public watchdogs. |
Considered by the Claimant to support the obligation to disclose information, but the Court found it unnecessary to decide due to the public function issue. |
| Moss v Information Commissioner and Cabinet Office [2020] UKUT 242 (AAC) |
Doctrine of precedent under HRA and application of Magyar decision. |
Referenced by the Intervener to argue adherence to Supreme Court precedent. |
| BBC v Sugar (No. 2) [2012] UKSC 4 |
Precedent on public authority and freedom of information. |
Referenced in relation to precedent and the limits of positive obligations under Article 10. |
| Kennedy v Charity Commission [2014] UKSC 20 |
Precedent on public authority and judicial review. |
Referenced by the Intervener concerning adherence to Supreme Court authority. |
Court's Reasoning and Analysis
The Court analysed whether the Conservative Party was exercising a public function when conducting its 2022 leadership election under section 6 of the HRA. It distinguished between three stages in the appointment of the Prime Minister: (1) the Party's internal election of its leader, (2) the incumbent Prime Minister's advice to the Sovereign, and (3) the Sovereign's appointment of the Prime Minister.
The Court held that only stages 2 and 3 involve public functions, while stage 1—the Party’s leadership election—is a private act. The Party is a voluntary association governed by its constitution and does not exercise statutory or governmental powers. The fact that the election has important public consequences does not transform the private act into a public function.
The Court rejected the argument that the Party was exercising a public function simply because it held a parliamentary majority and the leader’s election led to the appointment of the Prime Minister without a general election. The constitutional convention that the Sovereign appoints the person who commands the confidence of the House of Commons does not make the Party’s internal election a public function.
The Court considered the Datafin principle but found it inapplicable because the Party’s election was not a regulatory or judicial function backed by statutory powers and did not lack alternative private law remedies.
The Court acknowledged the importance of political parties’ autonomy to govern their own internal affairs without undue state interference, subject to applicable legal restrictions such as anti-discrimination laws.
The Court also noted that questions of justiciability regarding prerogative powers and advice to the Sovereign were not determinative here because the claim related solely to the Party’s leadership election.
Given these findings, the Court concluded that the Party was not a public authority under the HRA when conducting the leadership election and therefore the claim for judicial review could not succeed.
Holding and Implications
The Court’s final decision is to DISMISS the claim for judicial review.
The direct effect is that the Conservative Party’s refusal to disclose information about its 2022 leadership election stands, as it was not exercising a public function subject to the Human Rights Act. No new precedent was established beyond reaffirming the distinction between private acts of political parties and public functions under the HRA. The ruling preserves the autonomy of political parties to conduct internal elections without judicial oversight, except where statutory or constitutional law provides otherwise.