*Editors’ note – this post is part of a series on ‘Contemporary Challenges for Constitutional Accountability’. The other posts in the series will be available here.*

It is difficult to provide a satisfying account of constitutional accountability in the UK without considering the internal processes of major political parties (especially the governing party and the largest opposition party). Yet, intra-party processes often do not receive the attention of constitutional scholars. Therefore, in this blog, I will discuss the constitutional importance and the legal treatment of intra-party processes. I will start with the constitutional significance of certain intra-party processes. Subsequently, I will discuss the consequences of the existing private law status of parties. I will then comment on the amenability of intra-party processes to judicial review in light of a recent judgment delivered by Fordham J in R (Tortoise Media) v Conservative Party [2023] EWHC 3088 (Admin) (‘Tortoise Media’). The blog concludes with a caution against a blanket rejection of judicial review of intra-party processes.

Constitutional Significance

Within the idealised theory of the Westminster parliamentary system, the House of Commons is conceptualised as a collection of individual parliamentarians, the government as the delegate of Parliament, and elections as localised contests between individual candidates from territorial constituencies. Political parties, as we know them today, may be anathema to this conventional theory of the Westminster parliamentary system. This conventional theory of the relationship between parties and the constitution system also reflects the nineteenth-century realities of British politics. In this era, inside Parliament, parties were loose groupings of like-minded MPs that organised parliamentary business and supplied confidence to the government. Outside Parliament, political elites were organised around informal ‘political clubs’.

The expansion of the franchise through the nineteenth and twentieth centuries birthed the modern political parties. Unlike their earlier avatars, parties developed extra-parliamentary organisations and extensive machinery outside Parliament. The party organisation runs the electoral machine, carries its programme to the masses, and structures electoral competition. By uniting individual representatives through long-term party attachments, parties not only secure the stability of government, but also provide a device for concerted action within Parliament, as is necessary for regular and cohesive law-making.

At the same time, parties also become the critical source of accountability of the government in at least two ways. First, parties facilitate a stable collective ‘opposition’, which checks the Government by presenting itself as a government-in-waiting to the general electorate. The largest opposition party, which seeks to replace the Government, becomes one of the most potent sources of constitutional accountability. Second, governing parties – collective associations of members, activists, and MPs – may subject individual party leaders, and therefore also the Prime Minister,  to intra-party checks. 

Given the centrality of political parties, at least some of their major internal processes, such as leadership election and candidate selection, are intimately connected to constitutional processes. How the governing party selects or removes its leader – an internal party process – is likely to shape the contours of intra-party accountability of the Government.  To give one example, while the Conservative Party leader – subject to the rules of the 1922 Committee – can be removed by the party MPs, the Labour Party leader could be removed if the leader loses the leadership election among party members. This difference in procedure is likely to influence who the party leader, and hence the PM, may be ultimately accountable to. Similarly, how parties (de)select their MP candidates and who controls the selection process may profoundly influence the relationship between the backbench MPs and the Government, and determine the contours of parliamentary accountability of the government. For instance, if the party leader controls the entire selection process, then backbench MPs may be less willing to challenge or constrain government policies.

To some extent, constitutional norms already recognise the centrality of parties. For instance, the leader of the largest opposition party is a statutorily recognised position [Ministerial and Other Salaries Act, 1975, s 2(1)]. According to the convention on government formation, the leader of the party (or a coalition of parties) with a majority of seats in the House of Commons is usually asked to form the Government. Similarly, the Salisbury convention confers a constitutionally heightened status to the electoral manifesto commitments of the party in government.

Private Law

However, the legal treatment of parties does not fully reflect the enhanced constitutional significance of intra-party processes. The relatively recent statutory regulation of political parties in the UK mainly focuses on their funding, broadcasting, and registration. The ‘internal’ affairs, such as candidate selection, disciplinary actions, and leadership selection, continue to be outside the scope of statutory regulation.

At common law, parties are unincorporated associations whose internal rules are contracts between members. Their private law status does not automatically rule out any judicial supervision of intra-party processes. For example, the courts can enforce party rules governing internal processes like an ordinary contract. Moreover, the courts can constrain discretionary powers under the contract. As the Supreme Court affirmed in Braganza v BP Shipping [2015] UKSC 17, the principles constraining contractual discretion, such as propriety of purpose, relevance, and rationality, are akin to administrative law standards governing the abuse of statutory discretion (see [28]). In Evangelou v McNicol [2016] EWCA Civ 817 [49], the Court of Appeal further confirmed that the Braganza duty also applies to discretionary powers of intra-party authorities under political party rules. These developments in private law demonstrate that although JR procedure is not available against political parties, the substance of JR grounds may nonetheless be applicable in the context of intra-party processes. 

However, if the JR procedure were to be available in relation to political parties, there could be at least three valuable consequences. First, privity of contract currently prevents non-members from having any legal recourse against parties. The JR procedure may extend, at least in theory, the standing to non-members with ‘sufficient interest’ to seek legal accountability of intra-party authorities. Second, the time limits and relatively prompt procedure may be more suited to legal challenges to relatively fast-paced intra-party politics. Third, under private law, the courts are bound by the terms of the contract. However, a small group of office bearers in the party may simply alter the party rules. The JR may enable the members to also challenge the amendments of party rules on administrative law and human rights grounds.

However, the courts in the UK have been reluctant to extend the JR procedure to political parties.  For example, the High Court refused permission to bring a JR claim against an internal disciplinary proceeding against the Conservative Party in R (Khaw) v Conservative Party CO/8019/2013 (HHJ Blackett) (mentioned in Tortoise Media at [22], [26] and [34]).  Despite the constitutional interconnectedness highlighted in the first part of this post, the courts continue to consider theformal separation between the formal constitutional processes and internal party processes as a decisive factor. The Administrative Court judgment in Tortoise Media further reveals this feature of the legal treatment of intra-party processes.

Tortoise Media v Conservative Party

This case arose from the Conservative Party leadership contest after Boris Johnson announced his resignation in July 2022. During the long summer election, James Harding, the editor of ‘Tortoise Media’, successfully registered ‘Archie’ – a pet tortoise – as a Conservative Party member. This prompted Tortoise, the media company, to request certain anonymised information about the Conservative Party membership, which the Party refused to release. The selection of the leader, the party noted in its refusal letter, was an internal affair of the Conservative Party – a private entity. Tortoise Media argued that this ‘impugned refusal’ violated its right to receive information under Article 10 of the ECHR. At the permission stage, however, the key question was whether a specific intra-party process – ‘a political party’s function of selecting its new party leader, mid-term, while the party has a majority of the MPs in the House of Commons’ – was a ‘public function’? ([25]). If the answer was yes, the specific function, subject to other requirements, may have been amenable to JR.

The key argument advanced by Tortoise Media was that as a matter of ‘substance’ and ‘practical reality’, the selection of the party leader was the ‘de facto election of the new Prime Minister’. It is a ‘known consequence’ and ‘strong convention’ that the ‘new party leader selected by the party will then become the person identified in the advice to the Sovereign’, [25]. As such, the party leadership selection process is ‘closely interwoven into the system of government’. Tortoise Media also advanced a related but distinct argument based on Miller-II. It submitted that following Miller-II, the lawful ‘scope’ and ‘limit’ of the prerogative power of the appointment of PM may be susceptible to JR.  If so, by selecting its leader, ‘the party is deciding the content of the reviewable and justiciable advice to the Sovereign’,[29]. For these reasons, the leadership selection by the Conservative Party has a strong public element, public flavour and public character’. [25]

Fordham J agreed with Tortoise Media that the choice of the Conservative Party leader had the ‘known consequence’ of ‘producing an appointed Prime Minister’. However, ‘a function is not to be equated with a consequence, including a known consequence’, [35].  In formal terms, however, the internal selection of a party leader does not, by itself, amount to the selection or the appointment of the PM. For the elected leader to become the PM, as Fordham J noted, the internal decision of the party requires an ‘external adoption’, [35]. The ‘external adoption’ is a two-step process. First, the PM or the Lord President of the Privy Council should ‘advise’ the Sovereign about the person likely to command the confidence of the House of Commons. As a matter of convention, this ‘advice’ is based on the outcome of the intra-party process. However, at least legally, the advice is a separate process from the internal party election. Second, the Sovereign, not the party, finally ‘appoints’ the new PM based on the advice. As Fordham J further stated: 

In so far as there is an act of the executive susceptible to review whose constitutional legality is justiciable in a court of law, it would be the act of the adviser of the Sovereign; not the Sovereign, and not the political party, [48]

As such, the specific internal party process does not amount to a ‘public function’. It appears that the decisive factor for the court’s decision was that ‘the political party has no legal power to select or appoint the Prime Minister’, [35]. In sum, the Court puts great emphasis on de jure powers: the power of the Privy Council (or the existing PM) to advise the Sovereign and the power of the Sovereign to appoint. These de jure powers, however, could not legitimately be exercised independent of constitutional norms. As stated in the Cabinet Manual, for a mid-term change of PM, ‘it is for the party or parties in government to identify who can be chosen as the successor’, [2.18]. The modern convention of government formation binds the adviser constitutionally, if not legally, to essentially defer to the party’s decision. It is difficult to imagine a situation where the adviser goes against the party’s decision. In any case, doing so would be nothing short of violating fundamental constitutional norms. 

Admittedly, the court cannot enforce constitutional conventions. However, it need not preclude the court from taking cognisance of a well-established convention – as a part of a factual context – to apply the public function test, which, by its very nature, requires a contextual inquiry. Arguably, the ‘strong convention’ could at least be a powerful indicator in favour of the conclusion that the party performed de facto public functions, even if it does not have de jure powers to select the PM.  However, in keeping with its general emphasis on de jure powers, the court’s reasoning in Tortoise Mediadoes not seem to consider the constitutional convention a relevant contextual factor for the purposes of applying the public function test.

Moreover, the emphasis on de jure powers may also lead to a different outcome in other, similarly situated, cases. Let us take the example of the Leader of the Opposition (LO). Unlike the selection of the PM, which formally rests on the convention of the PM’s advice to the Sovereign, the selection of the LO is governed by a statute. Section 2(1) of the Ministerial and Other Salaries Act, 1975 defines the LO as: 

[T]hat Member of that House who is for the time being the Leader in that House of the party in opposition to Her Majesty’s Government having the greatest numerical strength in the House of Commons. (emphasis added)

The statute recognises that the party has de jure, not merely de facto, powers to select, if not to ‘appoint’, the LO – a constitutional office. By the operation of the statute, the internal selection process automatically converts into the selection of the LO. Given the statutory footing of the selection process of the LO, it would not be legally inconsistent with the judgment in Tortoise Media to argue that the largest opposition party performs a ‘public function’ by officially, not just effectively, selecting the LO. The focus on the ‘legal power’ may, thus, leave us with an intriguing outcome: while the leadership selection of the largest opposition party may, at least in principle, be amenable to JR (or Convention Rights jurisdiction), a similar process of the majority party is not. As I have mentioned above, this seemingly odd contrast could, in part, be attributed to the weight that the court gives to de jure powers as opposed to the political context in which de jure powers are exercised.

The absence of legal powers held by parties was not the only factor. Another factor requires our special attention in order to understand the import of this judgment for the public law treatment of intra-party processes in the future. One of the factors that influenced the court’s decision was that Tortoise Media failed to identify any ‘public law error’ or violation of any ‘Convention right’  in the Conservative Party leadership selection process. As Fordham J observes:

No public law error is even suggested, as to the exercise of the Conservative Party’s 2022 selection of its new party leader. No case is made that the process breached a public law standard of fairness, that the decision or decision-making breached a public law standard of fairness, that the decision-making breached some duty or that it violated some right.

Instead, Tortoise’s claim mainly lay against the Conservative Party’s ‘ancillary function of refusing to provide information’, [43]. Fordham J further observed that the appropriate response may lie under information law, not judicial review. 

These observations keep the door open for bringing a JR claim if there is an identifiable ‘public law error’ in a leadership selection process, even if there was none in this case. However, even in a situation where the applicant could identify a public law error in an intra-party process, JR may lie against the advisor to the Sovereign, not the political party. [46] As such, even this hypothetical carve-out may only allow challenges to the outcomes of a leadership selection process, not the internal process itself. 

Conclusion

Intra-party processes, although contractually structured, carry immense constitutional significance. As Alison Young observes, ‘[t]he institution that can provide the most effective check over a government in the post-Brexit constitution would appear to be the political party from which the government is formed’ (at 205). 

With the growing constitutional significance of intra-party processes, this was probably not the last attempt to seek public law remedies against parties. Moreover, there is a range of intra-party processes, such as disciplinary proceedings, candidate selection, or even leadership selection of opposition parties, that are obviously beyond the scope of Tortoise Media, [26]. The extension of JR procedure to certain intra-party processes, especially the ones that lead to constitutional appointments, may be a desirable addition to the existing private law avenue for ensuring that one of the most significant sources of constitutional accountability in the UK does not operate below the radar of even minimal legal oversight.  

There may be a policy reason for avoiding giving public law status to intra-party processes. Excessive judicial interference risks breaching ‘the vital dividing line between the world of politics and the world of law’ (Foster v McNicol[2016] EWHC 1966 (QB) [59]). However, a blanket rejection of JR of intra-party processes may be an overcautious response. The extent of actual judicial intrusion depends on how substantive public law standards are applied in each case. There is no reason why recognising the public law status of certain intra-party processes – a case-by-case determination – should prevent courts from showing appropriate deference to intra-party authorities while applying substantive public law standards. 

However, an even more effective regulatory response may be a statutory intervention that mandates a degree of transparency and provides for an oversight mechanism relating to certain key intra-party affairs of major parties, such as the leadership selection processes, by an independent body.

I thank Prof. Alison Young, Dr. Guy Baldwin and the editors of the UKCLA blog for their thoughtful comments on an earlier draft.

Aradhya Sethia is a PhD candidate at the University of Cambridge.

(Suggested citation: A. Sethia, ‘Constitutional Accountability, Intra-party Processes, and Tortoise Media’, U.K. Const. L. Blog (31st January 2024) (available at https://ukconstitutionallaw.org/))