The way the Conservative party elects its leaders means the next contest will be vulnerable to manipulation
Who chooses the next PM?
What odds, do you think, would I get on betting that Boris Johnson will lead the Conservative Party into the next General Election?Â
Even as he packs his bags and prepares to move out of 10 Downing Street this weekend, heâ€™s surely wondering whether he shouldnâ€™t keep a sock drawer in the upstairs flat. After all, thereâ€™s a real chance heâ€™ll be back.Â
The contest between Liz Truss and Rishi Sunak has, in large part, turned out to be a referendum on whether Johsnon needed to resign. More than views on tax cuts or inflation, on energy prices or immigration, the issue that pollsters have found most likely to determine which way Conservative members will vote is how they feel about Johnson: members who think he shouldnâ€™t or neednâ€™t have resigned are much more likely to back Truss; Sunak supporters are much more likely to think Johnson had to go. When the pollsters put Johnson in a hypothetical race â€“ i.e. a three-way race between Truss, Sunak and Johnson â€“ not only does Johnson win, but he takes two thirds of the Truss vote.Â
In other words, we know Johnson wouldnâ€™t have to be asked twice to return to Downing Street; we know the party, much more than the country, wants him back and so do a clutch of wealthy donors; and we know another leadership challenge before the next general election is perfectly possible, given that inflation is soaring, a recession is coming and, with the party changing leader three times in the last six years, the tenure of a Tory PM is only a bit longer than a Premier League football manager. (Theresa May and Boris Johnson both lasted just over 1100 days; football managers average about 770.)
Iâ€™m James Harding, editor of Tortoise, and in this weekâ€™s Editorâ€™s Voicemail I want to talk about the week weâ€™ve had trying to make the case that the election of the UKâ€™s next prime minister, which closes today, is undemocratic and the conduct of the Conservative Party is unlawful. And I want to explain what weâ€™re going to do next, why weâ€™re not going to stop pursuing a Judicial Review of the Conservative Party even after the new prime minister is announced, why, tortoise-like, weâ€™re going to keep going.Â
On Tuesday, we sent a letter to the Conservative Party informing them that weâ€™re looking to take them to court for refusing to disclose information about whoâ€™s voting and what measures they take to make sure the election is fair and safe.Â
Some people spat back: why were we trying to derail the election? Well we werenâ€™t. I think the election is undemocratic, but our legal case isnâ€™t about that; itâ€™s not about trying to stop the election. Our case is the one that youâ€™d expect a newsroom to bring. Itâ€™s about the right to know. We think the Conservative Party should disclose information about whoâ€™s voting for the next PM and how; the party refuses and we think thatâ€™s a breach of common law relating to open government and human rights law guaranteeing press freedom and the right to know information about the functioning of our democracy.Â
Most people, to be honest, have paid the issue almost no attention at all. â€śWhy so little talk across the media,â€ť Alastair Campbell tweeted, â€śof the Tortoise expose of the potentially unlawful nature of the Tory leadership contest?â€ť Frankly, I donâ€™t know. A few journalists have covered it; one editor, having read that weâ€™d registered our pet tortoise as a Tory member, messaged me this week to ask: â€śHow did Archie vote?â€ť I said he spoiled his ballot. But, for some reason, the story didnâ€™t exercise the media much.
Peter Kellner, the pollster, drafted three questions to get a sense of what the public thinks. YouGov conducted the poll and, when the numbers came back, they were overwhelmingly clear: only 13 per cent of people think party members should decide; 58 per cent think it should be a general election; 18 per cent think MPs. (And interestingly, only one in five Conservative voters think party members should vote for the new leader and PM.) And, on a critical issue for our case, more than two thirds of people said the Conservative Party was serving a public function in holding the election rather than treat it as a private matter. (Again, only one in five Conservative voters said they thought, as the partyâ€™s chief executive does, that itâ€™s a private matter.)
Archie Norman, the former chief executive of the Conservative Party, who reformed the membership rules when William Hague was leader in 1998 wrote for Tortoise this week. And he wrote, in his words, that â€śitâ€™s time for a rethinkâ€ť. In his piece, which is really worth reading, he wrote: â€śQuestions have to be asked about a process that means a new prime minister is elected by a diminishing band of loyal and worthy supporters no longer representative of Conservative opinion in the country as a whole.â€ť His point goes beyond problems with this electorate and the election process, but to the nature of political parties and new ways of getting politics back in touch with the grassroots.
Then David Allen Green and Joshua Rozenberg, who both pull off the rare trick of writing commentary on the complicated world of the law thatâ€™s both sophisticated and muscular, wrote blog posts [Davidâ€™s can be found here, and Joshuaâ€™s here] about the Tortoise legal challenge that I found really helpful. Put simply, the blogs broadly said the same thing: Tortoise has a good point, but a difficult case. Hereâ€™s why. Judicial reviews apply to public bodies not private organisations; to get the case heard, a judge will have to accept that when running the election for leader and prime minister the Conservative Party has been serving a public function.
After reading what they both had to say, we held a meeting with our barristers â€“ Alan Payne QC and Aaron Moss of 5 Essex Court â€“ to consider what next. The law says that judicial review applies to an organisation depending either on what it is (i.e. a public body) or what it does (i.e. a public function). Now to us, itâ€™s clear that holding an election that decides the prime minister is a public function; and it certainly warrants a hearing. The lawyers were also clear that the information weâ€™re seeking is in the public interest: people should have the right to know the demographics of the electorate and the systems in place to ensure a secure election. (We also followed up on a comment from a reader on the bottom of David Allen Greenâ€™s Law and Policy blog who wondered whether itâ€™s worth pursuing the case in Scotland, where the rules around who qualifies for judicial review are a little different; the short answer is, at this stage, probably not.) I came away from that meeting even more resolved to keep going: the fact that the public interest is so clear means that, in an untested area of the law and our political constitution, this is a powerful case.
We had asked the Conservative Party to respond sooner than the 14 days required. They wrote back on Wednesday night to say no, theyâ€™d take the two weeks. Today, we wrote back to say we think they can and should reply before then.Â
In other words, after the polls close today and the prime minister is announced on Monday, weâ€™ll keep on at it. We think that the media should join us in making the case that political parties should disclose information in the public interest when theyâ€™re running the election of the prime minister. We also think that, in the weeks and months to come, this information is going to be needed: people are going to want to know who and how the next prime minister was elected.Â
And, of course, another leadership contest might well be coming our way before too long. If you were a) a foreign power out to make mischief b) the backer of a prospective candidate making preparations for the next run at the leadership or c) Boris Johnson planning the road back to Downing Street, then just think: you could buy up 20,000 Conservative Party memberships, regardless of how many of them are in the UK, overseas or under the voting age, for just ÂŁ500,000. And with those in your pocket, you will control the swing vote in the next party leadership contest and the keys to Number 10 if thereâ€™s another leadership contest.Â
Not a bad investment when you think our politics has become as unstable and unpredictable as Italyâ€™s. Senior Conservatives are already really worried that our likely next prime minister, Liz Truss, will put the party on the path to electoral defeat. Theyâ€™ve begun to wonder aloud when she will face her first vote of no confidence. La dolce vita in Westminster resumes on Monday.Â