Who chooses the next PM?
30 August 2022
Darren Mott, CEO
cc Ben Elliott, Conservative Party chairman
cc Sir Graham Brady MP, Chair Conservative Party 1922 Committee
30 August 2022
This letter is written pursuant to the Pre-Action Protocol for Judicial Review.
Proposed claim for judicial review
1. To The Conservative and Unionist Party, c/o Darren Mott OBE (CEO of the defendant)
2. The Claimant is Tortoise Media (“Tortoise”), acting through its Editor Mr James Harding.
The defendant’s reference details
3. This Pre-Action Protocol letter is sent further to correspondence with Mr Mott OBE.
The details of the claimant’s legal advisers, if any, dealing with this claim
4. Tortoise is represented by counsel:
Alan Payne QC and Aaron Moss
5 Essex Court
The details of the matter being challenged
5. Tortoise will challenge your letter, dated 26 August 2022, which records the decision made on behalf of Conservative and Unionist Party (“Conservative Party”):
a) Denying that, in running the election of its new leaders, the Conservative Party is exercising a public function, within the meaning of s6 Human Rights Act 1998,; and accordingly,
b) Refusing to disclose information in response to nine specific questions about its members and election processes.
The details of any Interested Parties
6. We do not consider there are any Interested Parties. We invite you to consider this matter too.
The Request which gave rise to the Decision under challenge
7. The results of the Conservative Party leadership election (“Election”) are expected by 5 September 2022. The Conservative Party states on its website that “[o]n 5th September, we will announce the next leader of the Conservative and Unionist Party and the next Prime Minister of the United Kingdom.” On that same homepage, the website displays quotations from the two leadership candidates. The quotation attributed to The Rt Hon Rishi Sunak MP says “I am standing to be Leader of the Conservative Party and Prime Minister of our great country.” The quotation attributed to The Rt Hon Elizabeth Truss MP says “[a]s Party Leader and Prime Minister, I will deliver what we promised in 2019 and, with your help, win the next General Election.”
8. Accordingly, it is understood to be common ground that the winner of that Election will be appointed Prime Minister by Her Majesty The Queen.
9. It is overwhelmingly likely that the election of the new leader of the Party will result in the leader being Prime Minister. The process being undertaken by the Conservative Party is, therefore, to all intent purposes a de facto election of the Prime Minister. It is difficult to conceive of anything which is a more important public function than the appointment of the head of Her Majesty’s Government.
10. Ordinarily, the election process allows the vast majority of the members of the public to have their say in relation to who will be the Prime Minister. Such a process is operated in a transparent way with those who are ineligible to vote being clearly identified, and the basis for the outcome of the process accessible by the public. In this case, by way of departure from this open and transparent process, the Prime Minister will be chosen by a process from which the vast majority of the members of the public, who are not members of the Conservative Party, are excluded. In these circumstances and, in particular given the exclusion of the vast majority of the general public, it is imperative that Election is undertaken in a transparent manner so that those who are not involved in the process can be satisfied – (i) as to the bona fides of those whose votes will result in the de facto election of the Prime Minister, (ii) that the Conservative Party have in place a rigorous system for checking/reviewing the identity of those who apply for membership and those who purport to vote, and (iii) that a fair and proper process is adhered in undertaking the Election with those involved being properly accountable.
11. Since 8 August 2022 Tortoise has made requests, verbally and in writing, to the Conservative Party for it to release information as to the membership of its electorate and the processes which it has in place for conducting the Election. The requests provide the Conservative Party with the opportunity to satisfy and reassure the wider public as to the adequacy of the Election being undertaken (and thus the legitimacy of the candidate who will be Prime Minister). For reasons which are unclear the Conservative Party has consistently refused to avail itself of this opportunity, citing various reasons including the General Data Protection Regulation (“GDPR”). In this way the Conservative Party seeks to deny public scrutiny of the process which identifies the individual who will be Prime Minister.
12. It is unclear if the stance being adopted by the Conservative Party is supported by the candidates who are seeking election as party leader. We would welcome confirmation of their position in respect to these requests made by Tortoise and whether public accountability and transparency is best served by the refusal to provide a response.
13. In terms of particulars, on 17 August 2022, the Editor of Tortoise wrote to Mr Mott, copying the letter to Mr Ben Elliott (Chairman of the Conservative Party) and Sir Graham Brady MP (Chairman of the Conversative Party 1922 Committee). In that letter, Tortoise requested the Conservative Party to provide information in response to nine numbered questions (“Nine Questions”), making the request at common law and pursuant to Article 10 ECHR.
14. The Nine Questions asked the Conservative Party to provide information as to:
(1) Anonymised data you hold on the demographic of the Party’s membership:
(a) Particularly, we invite you to provide, where held, the number of Party members who:
(i) Live abroad;
(ii) Are foreign nationals; and
(iii) Are under voting age.
(b) We also ask you to provide data in respect of:
(i) The age range of members;
(ii) The geographic distribution of members; and
(iii) The genders of members.
(2) 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.
(3) Anonymised data you hold on variations in member numbers over time, presented quarterly over the past 10 years. The public interest is particularly acute in respect of quarterly membership numbers for the past twelve months.
(4) An explanation of the Party’s system of compliance, including but not limited to the following questions:
(a) How does the Conservative Party check that new members are who they say they are?
(b) Who oversees compliance? i.e. who independently checks whether the Conservative Party is checking?
(5) What is the number of efforts at infiltration which the Party has thwarted, i.e. how many cases have you discovered of a fictional person, a dead person, a person of non-voting age, a member of another political party or a pet registering as Conservative member?
(6) 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.
(7) An explanation of the circumstances by which GCHQ came to offer advice on the distribution of Conservative party ballots.
(8) An explanation of why non-UK citizens who join the party abroad are eligible to vote even if they pay no tax and spend no time in the UK.
(9) Confirmation of whether Party members under the national voting age can vote in the election of Party leader and Prime Minister.
15. By way of letter dated 26 August 2022 (the “Letter”) Mr Mott informed Tortoise of the reasons for the decision to refuse to provide any of the information requested (the “Decision”). In the Letter Mr Mott explained that: – (i) the Conservative Party was a political party and that the Election “was a private matter for members under its Constitution”, and (ii) the since “Party is not a public body and [since] it does not carry out public functions… I am therefore declining to answer your questions in detail” (the “Refusal”). It is unclear what Mr Mott meant when he referred to not answering questions “in detail” since, as is apparent from the face of the Letter, he had not provided an answer to any of the Nine Questions.
Application of relevant legal principles
16. The Refusal was contrary to Article 10 ECHR and common law.
17. CPR 54.1(2) provides that a claim for judicial review may be made in respect of the lawfulness of (emphasis added) “a decision, action or failure to act in relation to the exercise of a public function”.
18. In conducting the Election of its new leader in circumstances where its current leader is Prime Minister and whilst it retains a majority of MPs in the House of Commons the Conservative Party is exercising a public function. The result of the Election will identify the individual whom it is all but certain that Her Majesty The Queen will appoint as Prime Minister. Accordingly, the Conservative Party’s Election is the de facto election of the Prime Minister of Her Majesty’s Government.
19. We are only aware of one domestic judicial decision concerning whether a political party may be the subject of judicial review: R (Khaw) v The Conservative Party CO/8019/2013, unreported, 21 January 2014. This decision is a refusal of permission to apply for judicial review. The analysis in the judgement is limited to a single paragraph which merely asserts, without explaining, that for the purpose of its internal disciplinary proceedings the Conservative Party was not considered to be carrying out any public function. This of course provides no basis for considering that, in undertaking an Election which will result in the individual who will, in all likelihood be the next Prime Minister, the Conservative Party is not exercising – at least in substance – a public function. In relation to the latter it is simply inconceivable that, as is implicit in the Letter, the Election can be undertaken in secret, without any public accountability or transparency and without possibility of recourse to the Courts to ensure that a lawful process has been undertaken.
20. The scope of judicial review is “adaptable” and may be extended to any “integral part of a system which has public law character” or “performs what might be described as public law functions” (see R (ex p. Datafin Plc) v Panel on Take-Overs and Mergers  QB 815, 836-838). Whilst the source of the Conservative Party’s power is not determinative, in considering whether it has jurisdiction the High Court may look at “the nature of the power”; to do otherwise would be “to impose an artificial limit on the developing law of judicial review” (847-848). Moreover, the Court will consider whether “its functions have been interwoven into the fabric of public regulation or governmental control” (see R (Holmcroft Properties) Limited v KPMG Limited  Bus LR 203, confirmed in R (oao Hannah) v The Chartered Institute of Taxation  EWHC 1069 (Admin) at ).
21. The conduct of the Election run by an unincorporated association has a direct effect on the public. The Conservative Party recognises this in Mr Mott’s letter of 26 August 2022 that “by convention [Her Majesty The Queen] is likely to ask the person recently elected as the Leader of the Party” to lead the Government. The decision being challenged is self-evidently public in nature. Indeed, taking by way of analogy the ordinary election process, the regulation of which would inevitably reflect the exercise of a public function, precisely the same considerations lead to precisely the same conclusion in the context of the Election. Both processes result in the identification of an individual who – in all likelihood – becomes Prime Minister and the public interest considerations in ensuring that the public function is achieved through a fair and transparent process are the same. Indeed, one might say that there is even more compelling in ensuring transparency of the Election given the exclusion of the vast majority of the electorate from the process.
The Conservative Party is subject to the Human Rights Act 1998 in conducting the election
22. For the purposes of s6 Human Rights Act 1998, Tortoise does not aver that the Conservative Party is a public authority within the ordinary meaning of the phrase. Rather, the Conservative Party is a public authority, for the purposes of s6 on account of s6(3)(b), for the same factual reasons that we rely on above as to the amenability of the claim to judicial review.
Article 10 ECHR
23. Unsurprisingly, the Government recognises that it is desirable “to support public confidence in the integrity of our electoral system” and to “ensure that our electoral law continues to be fair and transparent” (Written Statement of The Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office, The Rt Hon Michael Gove MP, 15 June 2021, Hansard Vol 697).
24. This written statement built on the Conservative Party’s Manifesto of 2019: “[w]e will protect the integrity of our democracy by introducing identification to vote at polling stations, stopping postal vote harvesting and measures to prevent any foreign interference in elections” (at page 48).
25. The Minister for the Constitution and Devolution, Chloe Smith MP, recognised on 12 May 2021 that “in our current system, there is an undeniable potential for electoral fraud and the perception of this undermines public confidence in our democracy”, speaking about the election of Members of Parliament (Hansard Vol 695).
26. The request which Tortoise makes to the Conservative Party is to allow the public to have some assurance that the leadership Election is being conducted to the same standards as a general election. The failure to allay the reasonable contrary perception causes significant harm to public confidence in our democracy.
27. Article 10 ECHR provides every person the “freedom to… receive and impart information and ideas without interference by public authority and regardless of frontiers”.
28. In Magyar Helsinki Bizottság v Hungary [GC], no. 18030/11 the European Court of Human Rights (“ECtHR”) held that Article 10 ECHR carries a positive obligation to provide information to the public where the threshold is met and where it is in the public interest. Although this right had not always been recognised in the past by the Court, Magyar Helsinki Bizottság represented a “clear and unequivocal change in the case-law” (see ECtHR’s Guide on Article 10, p.8).
29. This request for information passes the threshold for the engagement of Article 10 which the ECtHR described in that case (see paragraphs 158 – 170):
a. The purpose of the information request – Tortoise made the request so as to receive information and impart information to the public. The information being withheld by the Conservative Party, and there is no other way for the public to find it out.
b. The nature of the information sought – It is in the public interest to disclose the information. The information would provide “transparency on the manner of conduct of public affairs and on matters of interest for society as a whole and thereby allows participation in public governance by the public at large” (see paragraph 161). These circumstances meet all of the criteria in paragraph 162: “The public interest relates to matters which affect the public to such an extent that it may legitimately take an interest in them, which attract its attention or which concern it to a significant degree, especially in that they affect the well-being of citizens or the life of the community. This is also the case with regard to matters which are capable of giving rise to considerable controversy, which concern an important social issue, or which involve a problem that the public would have an interest in being informed about.”
c. The role of the applicant – This is a request made by the press, fulfilling its “essential role… in a democratic society” (see paragraph 165).
d. Ready and available information – the Conservative Party either has ready access to all of the information sought, or it does not. If it does, then the information is self-evidently of public interest. If it doesn’t, then this is of equally compelling public interest. The lack of checks, internal scrutiny and information concerning its membership would bring into question the lawfulness of the Election. Further and in any event, the fact that information is not readily accessible is not itself a reason for it to be withheld. Rather, given the undoubted significance of the information, both for the purpose of responding to the request but also for ensuring that the Election process is lawful, it needs to be obtained.
30. 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.
31. 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.
32. 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.
33. The Conservative Party has identified no countervailing considerations. It has not engaged with the request under Article 10 ECHR. It has provided no reasons – let alone adequate reasons – for why conducting the Election is not a public function. By focusing exclusively on the nature of the Conservative Party, as opposed to the nature of the function being undertaken with the Election, the Letter is manifestly flawed.
34. Tortoise made the same request to the Conservative Party at common law. The Supreme Court in Kennedy v Charity Commission  UKSC 20 recognised a common law principle of open government.
35. Disclosure at common law is required so as to enable “public scrutiny and awareness of the adequacy of the functioning and regulation” of something so vital to public life (see Kennedy at paragraph 49).
36. Where there is a genuine public interest in disclosure and where the information is sought for legitimate journalistic purposes, there is a common law presumption that a public authority or body exercising a public function will release the information. In the Letter it is not denied that there is a compelling public interest in disclosure and the presumption in favour of disclosure is not addressed .
37. Similarly, while it is accepted that the presumption in favour of disclosure can be rebutted by countervailing public interests in the information being withheld, it is noteworthy that no public interest considerations are identified in the Letter which are said to militate against providing some or all of the information requested. This undoubtedly reflects the fact that there is no legitimate public interest in the election of the Prime Minister being the subject of a secret process.
38. In all the circumstances the failure to comply with the common law principle of disclosure and/or provide adequate reasons for withholding disclosure is unlawful.
The details of the action that the defendant is expected to take
39. In addition to the failures to comply with the obligations arising under Article 10 and/or at common law, the response set out in the Letter is unlawful in its failure to address a number of material considerations; namely whether – given the critical need of maintaining public confidence in the Election and, ultimately, the individual who becomes Prime Minister – some or all of the requested information should be provided on a voluntary basis.
40. Tortoise will ask the Court to make a mandatory order that the Conservative Party provides a substantive and complete response to each of the Nine Questions.
41. We recognise that litigation should be a last resort. In the context of the election closing at 5pm on 2 September 2022, we trust that the Conservative Party will review its decision urgently.
42. We would be delighted to meet – prior to the Election process being completed – with Mr Mott and/or other representatives of the Conservative Party to discuss our position and explore what information the Conservative Party is content to provide in response to our questions.
43. Tortoise will give proper consideration to any proposals which the Conservative Party makes in respect of ADR.
The details of any information sought
44. In response to this letter, we ask you to provide a complete response to the points made in this letter in support of the claim which Tortoise intends to bring. Particularly, we invite you to give a full explanation of the basis on which you assert that “The Party is not a public body and it does not carry out public functions” and why in conducting the Election the Conservative Party is not carrying out – in substance – a public function.
45. We invite you to consider that your position in your letter of 26 August 2022 is inconsistent with the Conservative Party’s 2019 manifesto pledge to protect the integrity of our democracy.
The details of any documents that are considered relevant and necessary
46. We ask you to provide the following documents, which we believe are necessary to enable Tortoise to understand why the challenged decision has been taken and/or to present the claim in a manner which will properly identify the issues:
a. Any notes, records of communications, records of decisions, recordings of meetings or minutes of meetings which concern the request for information by Tortoise, or which concern any other request for information received by the Conservative Party in respect of the present election;
b. Any internal policy and/or guidance which concerns the Conservative Party’s provision of information generally to the public and/or the media; and
c. Any internal policy and/or guidance which concerns the Conservative Party’s compliance with the Human Rights Act 1998 and/or the ECHR.
The address for reply and service of court documents
47. Any correspondence should be directed to the Claimant
22 Berners Street
48. We are content for correspondence to be by email.
Proposed reply date
49. We request your reply by 5pm on Wednesday 31 August 2022. The election is due to close at 5pm on Friday 2 September and accordingly we will be unable to agree any extension, since this would prevent Tortoise from considering its position and issuing an urgent application for judicial review.
50. Although we recognise that this period is significantly shorter than the 14 days which is ordinarily given, we consider it is appropriate because the Conservative Party has been on notice of the position of Tortoise, and the fact that it would consider challenging any refusal by way of judicial review, since 17 August 2022.
51. Tortoise’s letter of 17 August 2022 requested a response by 24 August 2022. Instead of replying by that Wednesday, the Conservative Party informed Tortoise on Thursday 25 August 2022 that it would reply by the following day. The Conservative Party replied by email at 5pm on 26 August 2022, as the Bank Holiday weekend commenced.
52. Having received that email on 26 August 2022, Tortoise has acted as promptly as possible, sending this letter before 9am at the start of the next working week.
Call to arms: This is no way to elect a prime minister. If you agree, please help us spread the word. Tortoise is a small newsroom, and taking on a political party is no small task.