High Court Judgment of R (Tortoise Media) v Conservative Party [2023] EWHC 3088 (Admin)

Tortoise Media Limited is a British news outlet co-founded by James Harding, former BBC News director and editor of The Times. During the Conservative Party election in July 2022, which followed the resignation of The Rt Hon Boris Johnson as Prime Minister (the “Election”), Tortoise sent a request to the Conservative Party for information relating to the election process and the criteria applied in determining the Party Members who could vote for the Party leader. Tortoise sought the information to inform the public of the process which resulted in the de facto appointment of a new Prime Minister. The Party refused to provide the information on the basis that:- (i) it was a private members club, and (ii) the Sovereign appointed the Prime Minister. Tortoise pursued judicial review proceedings challenging the refusal on the grounds that: - (i) in carrying out the Election the Conservative Party was exercising a public function, thereby rendering the refusal susceptible to judicial review, and (ii) the Conservative Party had erred in failing to recognise Tortoise’s right under Article 10 of the ECHR to the information.

In a reserved judgment Mr Justice Fordham refused Tortoise permission to apply for judicial review holding that: -

1. There was no realistic prospect of establishing that the Conservative Party was exercising a public function when it carried out the Election.
2. Had it been arguable that the Conservative Party was exercising a public function, he would have held that it was arguable that Tortoise had a right to the information under Article 10. 

Tortoise, who were represented by Alan Payne KC, brought this case to establish two issues of principle: - (i) that political parties can have a public function, and (ii) the media has a right under Article 10 public interest information. Neither of these issues of principle have been established in domestic law; albeit that the Strasbourg Court in Magyar has recognised a limited right to information under Article 10.

The request for information made by Tortoise was in relation to one aspect of how the United Kingdom elects its Prime Minister. Six of the last nine prime ministers – Major, Brown, May, Johnson, Truss and Sunak were elected into the position of prime minister by their party members rather than the general public. Three of these prime ministers ran the country without ever winning a general election. There is little or no information available as to the party election process which would enable the public to know how this tiny minority of the population – there are approximately 150,000 Conservative Party members – have chosen to elect the Prime Minister who governs the UK.

Mr Justice Fordham, whilst acknowledging the importance of transparency and accountability, rejected Tortoise’s claim on the grounds that: - 

1. As a private members club the Conservative Party was not subject to judicial review proceedings.
2. In any event, the party Election did not result in the appointment of a Prime Minister; rather this arose because of the exercise of the prerogative power by the Sovereign. The power of the Conservative Party to elect their leader and that of the Sovereign to appoint the Prime Minister remains distinct. 
3. There was an effective remedy if there were concerns as to the Election process (for example if it had been corrupted), but this was through Parliament and the ability of the House of Commons by way of vote of no confidence to remove the Prime Minister.

In relation to the right to information under Article 10 Mr Justice Fordham said that, had he found that a judicial review claim could be brought, he considered Tortoise’s argument that Article 10 provided media outlets with a limited right to information under Article 10 was arguable and would have granted permission on this issue.

In this case Alan Payne KC, 39 Essex Chambers, represented Tortoise Media Limited alongside Aaron Moss on the instruction of Lewis Silkin LLP. Kevin Brown, instructed by Rosenblatt, acted for the Conservative and Unionist Party.

Please find a link to the Judgement here. 

Alan Payne KC is recognised as a leading silk who specialises in public law, public inquires, inquests, police law, and data protection & information law. He represents private clients, central government, public authorities, police forces in complex, high-profile and sensitive investigations, inquiries, judicial reviews and civil claims. Prior to taking silk he was on the Attorney General’s A panel of Counsel to the Crown.