Was the leadership election in which Liz Truss was elected as leader of the Conservative Party (and as a result of which she was recommended to the Queen by the outgoing Boris Johnson, and appointed by the Queen as her Prime Minister) a decision amenable to judicial review?
Whether a person is a public authority for the purposes of the Freedom of Information Act 2000 is, in principle, a relatively straightforward issue: is it listed in Schedule 1 to FOIA?; or has it been designated as such by order under section 5?; or is it wholly owned by the public sector?
Whether a person is a public authority under section 6 of the Human Rights Act 1998, or whether a person is a public authority amenable to judicial review, are more complex questions.
It was the last of these that the Court of Appeal had primarily to consider in Tortoise Media Ltd, R (On the Application Of) v Conservative and Unionist Party [2025] EWCA Civ 673. Tortoise Media had written to the Party seeking certain information in relation to the leadership election process, and argued that the public effects of the leadership election meant that, in those circumstances, the Party was exercising a public function for the purposes of CPR 54.1(2). The follow-on argument was that the judgment of the ECtHR in Magyar Helsinki Bizottság v Hungary meant that the domestic courts should read down Article 10 of the ECHR (as incorporated in domestic law in the HRA) as imposing, in some cases, a positive obligation on a body to provide information to the media, who act as “watchdogs” in the public interest.
Perhaps unsurprisingly, though, the Court of Appeal did not accept that the effects and circumstances of the Party leadership election made the decision of the Party amenable to JR:
the nature of the act of electing a party leader…is at all times a private act. The fact that it has important, indirect consequences for the public does not transform a private act into a public one.
For that reason, the Court did not need to consider the Article 10/Magyar arguments (but on which, one feels – having regard to the submissions on behalf of the Duchy of Lancaster, as intervener, which argued that the Supreme Court’s decisions in Sugar and in Kennedy (which did not follow the reasoning in Magyar) bound all inferior courts – the claimants would have in any case lost).
It’s an interesting read, even if it was – to put it mildly – an ambitious case to bring.
The views in this post (and indeed most posts on blog) are my personal ones, and do not represent the views of any organisation I am involved with.
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