As is well-known, Truss was chosen as Conservative Party leader following the resignation of Boris Johnson. Her tenure in office proved to be just 45 days - BBC 5 July 2024.
The process for choosing the Party leader was determined by the Party itself even though
the "winner" of the contest would then be duly appointed by the Sovereign as Prime Minister.Tortoise Media Ltd (now part of The Observer) applied to the High Court for judicial review of the Conservative Party's refusal to answer nine questions over the status and demographics of those Party members who chose Truss. The Conservative Party opposed the application arguing that its leadership election was not the exercise of a public function or governmental power.
Mr Justice Fordham gave judgment on 5 December 2023 and held that the Conservative Party was not exercising a public function when it conducted the leadership election, and was not therefore amenable to judicial review.
Tortoise then applied for permission to appeal. Permission was granted but the substantive hearing of the claim was reserved to the Court of Appeal (Civil Division). Hence, the Court of Appeal, considered not an appeal but decided for itself the claim for judicial review.
The Court of Appeal also held (unanimously) that the Party was not exercising any public function when it conducted the process for the election of its leader in 2022. The Master of the Rolls (Sir Geoffrey Vos) also noted (para 50) -
"There is one important issue of principle which should also be mentioned, which reinforces that conclusion. This is the importance in a free and pluralistic society of permitting political parties to adopt their own rules, for example as to how they elect their leader, without undue interference by the state. Of course there are limits to this principle, for example there may well be rules of law which prohibit discrimination on certain grounds such as sex or race in relation to who can become a member of a political party. Either such rules will apply, in which case it is that legal regime which will govern the issue under consideration; or such rules will not apply. If such rules do not apply, then, in my view, it would be wrong for the courts to impose constraints on the autonomy of political parties which Parliament has not thought fit to impose. ..."
Read the judgment - R (Tortoise Media Ltd) v Conservative and Unionist Party [2025] EWCA Civ 673
Paras 11 to 18 of the judgment describe the process for appointing a Prime Minister. Robert Hazell (Professor of Government and the Constitution, University College London) had supplied the court with a witness statement.
Comment
The appointment of Prime Minister is, in practice, a matter of immense concern to the electorate. It is worth noting that the Court of Appeal judgment (para 7) says
"In order to test the safeguards being applied in the leadership contest, in August 2022 Tortoise applied for four new memberships of the Conservative Party. The applications were for Archie Harding, a pet tortoise, two foreign nationals and Margaret Roberts, the maiden name of the late Prime Minister, Baroness Thatcher. Each of these applications was successful, with the membership fee being taken by the Party and the individuals being issued with membership numbers. Despite not being members on 3 June 2022 (the date for eligibility to vote in the election), each of the individuals was invited to the leadership contest hustings. Mr Harding states that the approach taken to these applications reinforced the concerns that Tortoise had about the election process."
It can hardly be said that these processes are satisfactory from the viewpoint of those who wish to see greater transparency in public affairs.
A cogent argument by Rodney Brazier ( Emeritus Professor of Constitutional Law in the University of Manchester) was that only elected MPs ought to have a right to vote - Rodney Brazier: No Way to Pick a PM – UK Constitutional Law Association - "It is for the political parties to decide how to elect their leaders. But should the votes of others than MPs be part of their electoral systems? I think not, and I never have."
Previous material
Truss - her selection as Conservative Party leader
A club choosing the next Prime Minister
Appointment of Prime Minister
UK Constitutional Law blog - On the appointment of the Prime Minister - " .... a broader question was left open by the Court about whether the ‘advice’ of an outgoing Prime Minister to the Sovereign as to who should be invited to become Prime Minister and form a government is justiciable."
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