The Tortoise and the Tories: a tale of exercising public functions

Tortoise Media requested (at common law and pursuant to the right of freedom of expression under Article 10 of the European Convention on Human Rights (“ECHR”)) the Conservative Party to provide them with information in response to nine questions about Liz Truss’s election in 2022 as the leader of the Conservative Party. The Conservative Party declined to do so on the basis that it does not carry out public functions. 

Tortoise argued: (a) that the conduct by the Conservative Party was a “function of a public nature” under s.6(3)(b) Human Rights Act 1998 (“HRA”) and “the exercise of a public function” for the purposes of judicial review; such that (b) the refusal to provide the requested information infringed Article 10 and was unlawful. 

Practical reality

Tortoise highlighted the need to focus carefully on the specific function under consideration: a political party’s function of selecting its new party leader, mid-term, while the party has a majority of MPs in the House of Commons.  This is because this specific function has a known consequence: that the leader will become the Prime Minister. 

In contrast, the Court noted that while the known consequence is that the leader becomes the subject of advice to the Sovereign and then the “subject of a decision of the Sovereign in the exercise of the prerogative power”, this is “by virtue of an external function of adoption”.  The Court highlighted the significance of the fact that the Conservative Party does not exercise, use or act through the use of the prerogative power: “the internal party function and the external adoption function are – in substance and reality – distinct”.  The Court also noted that it would be impossible for this specific selection function to be placed in the hands of a statutory public authority, as choosing the leader of a political party must be a “matter for the autonomy of that political party”, and could not, for instance, be chosen by an independent appointments commission.

Injustice

Tortoise argued that this specific function should “attract public law and human rights standards of accountability and transparency”, and injustice would be caused by the denial of a public law remedy. 

Instead, the Court concluded that “this specific function is not one where it is necessary or appropriate for the rule of law and other constitutional principles to be given effect through judicial scrutiny applying judicial review principles”.  In a decision demonstrating the Court’s ostensible reticence to allow judicial review to be used as a mechanism for political regulation (echoing the decision of the court in the ITV Broadcasting case in which Hogan Lovells represented ITV in challenges concerning the broadcast of political debates), the Court indicated that there was in fact no need for judicial scrutiny of the refusal to provide information..

Miller II

Tortoise argued that its claim had parallels with Miller II (where the Court held the decision to prorogue Parliament to be amenable to judicial review). This was “because the party is deciding the content of the reviewable and justiciable advice to the Sovereign”. 

However, the Court distinguished Miller II, stating that in that case accountability to Parliament was being fundamentally undermined (that is, the prorogation advice was unlawful because it  frustrated Parliament’s proper constitutional role). In contrast, in the present case, any new Prime Minister would immediately be accountable to Parliament, and the ability of the House of Commons to remove any Prime Minister provides a “constitutionally suitable and appropriate safeguard”.

By noting that it would in principle be possible for a challenge to be raised in relation to the advice given directly to the Sovereign regarding the Prime Minister’s appointment, the Court laid down clearer boundaries for judicial supervision in the political arena.

Article 10 claims for information

In Magyar Helsinki Bizottsag v. Hungary, the European Court of Human Rights articulated a set of public interest criteria used to determine when an individual has a right of access to information held by a public authority.  If the Court had found that the Conservative Party was exercising a public function, this would mean that the information Tortoise sought would constitute “State-held information” for the purpose of the public interest criteria. The criteria (the purpose of the information request; the nature of the information sought; the role of the applicant; and whether the information is ready and available) are used to determine when access to information is “instrumental” for an individual’s freedom of expression, and so if the individual has a right to receive the information under Article 10 ECHR. The Conservative Party would then be under a statutory duty not to violate that right, and so would have to share the information to avoid unjustifiably interfering with Tortoise’s right to freedom of expression under Article 10 ECHR. 

Although ultimately of no impact in this case (because the Court rejected the argument that the Conservative Party was exercising a public function), the Court noted that it “would have accepted as arguable… that the reach of a ‘hybrid’ public authority’s public function falls within ‘State-held information”. 

Significance of this case

As we head towards a General Election, this case provides helpful guidance as to the proper scope of judicial supervision in the political arena. Further, the Court’s indication that Article 10 ECHR could provide a freestanding positive disclosure obligation on bodies exercising a public function could be significant. This would strengthen rights to obtain public interest information from those exercising a public function for reasons of transparency, openness and accountability.

Authored by Louis Biggs and Georgia Crawford.