The King (on the application of Tortoise Media Ltd) v Conservative and Unionist Party
| Jurisdiction | England & Wales |
| Judge | Fordham J |
| Judgment Date | 05 December 2023 |
| Neutral Citation | [2023] EWHC 3088 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3695/2022 |
[2023] EWHC 3088 (Admin)
Fordham J
Case No: CO/3695/2022
AC-2022-LON-002781
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Alan Payne KC and Aaron Moss (instructed by Lewis Silkin LLP) for the Claimant
Kevin Brown (instructed by Rosenblatt) for the Defendant
Hearing date: 23.11.23
Draft judgment: 27.11.23
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Fordham J Fordham J Part 1. Introduction
This is a case about the appointment of a new Prime Minister mid-term, the Political Party Leadership selection process from which that new Prime Minister emerged, and the reach of judicial review and the Human Rights Act 1998 (“ HRA”). It is also a case about information and the press.
Information and the Press
These are the opening words of Lord Mance's judgment in Kennedy v Charity Commission [2014] UKSC 20 [2015] AC 455 (at §1):
Information is the key to sound decision-making, to accountability and development; it underpins democracy and assists in combatting poverty, oppression, corruption, prejudice and inefficiency. Administrators, judges, arbitrators, and persons conducting inquiries and investigations depend upon it; likewise the press, NGOs and individuals concerned to report on issues of public interest .
And these are the words at the heart of the judgment of the Grand Chamber of the European Court of Human Rights in Strasbourg, in Magyar Helsinki Bizottság v. Hungary Case No.18030/11 (2020) 71 EHRR 2 (8.11.16) (at §167):
The manner in which public watchdogs carry out their activities may have a significant impact on the proper functioning of a democratic society. It is in the interest of democratic society to enable the press to exercise its vital role of “public watchdog” in imparting information on matters of public concern, just as it is to enable NGOs [non-governmental organisations] scrutinising the state to do the same thing. Given that accurate information is a tool of their trade, it will often be necessary for persons and organisations exercising watchdog functions to gain access to information in order to perform their role of reporting on matters of public interest. Obstacles created in order to hinder access to information may result in those working in the media or related fields no longer being able to assume their “watchdog” role effectively, and their ability to provide accurate and reliable information may be adversely affected .
New Prime Ministers
The Cabinet Manual is a guide to the laws, conventions and rules on the operation of government. This is how it describes the Prime Minister (at §§3.1–3.2):
The Prime Minister is the head of the Government and holds that position by virtue of his or her ability to command the confidence of the House of Commons, which in turn commands the confidence of the electorate, as expressed through a general election. The Prime Minister's unique position of authority also comes from support in the House of Commons. By modern convention, the Prime Minister always sits in the House of Commons. The Prime Minister will normally be the accepted leader of a political party that commands the majority of the House of Commons… The Prime Minister accepts office at a private audience with the Sovereign, at which time the appointment takes effect…
This is how it describes a mid-term change of Prime Minister (§2.18):
Where a Prime Minister chooses to resign from his or her individual position at a time when his or her administration has an overall majority in the House of Commons, it is for the party or parties in government to identify who can be chosen as the successor .
David Torrance's comprehensive House of Commons Library Research Briefing (24 October 2023) is entitled “The Royal Prerogative and Ministerial Advice”. Torrance identifies the King's “constitutional” or “personal” prerogatives as including the appointment of the Prime Minister (pp.9, 35). He says this about the Prime Minister's appointment after a General Election (p.39):
Following an election, the monarch is bound by strong convention to appoint the person who holds, or is most likely to hold, the confidence of the House of Commons. If this is unclear, for example if an election has produced a hung Parliament, then the Cabinet Manual states that it is for political parties to reach an agreement .
Torrance then says this about a change of Prime Minister mid-term:
If a Prime Minister has resigned mid-term, then the choice is guided by the choice of MPs or party members as to who ought to succeed them as party leader. While an outgoing Prime Minister will have indicated their intention to resign, they do not formally do so until clear advice can be given to the Sovereign as to who should be asked to form a government .
New First Ministers
Torrance adds that the First Ministers of Scotland and Wales are “nominated following a vote in the Scottish and Welsh Parliaments”, which “circumscribes any requirement for ‘advice’”. This is by reason of statutory provisions in the Scotland Act 1998 and the Government of Wales Act 2006. There, the UK Parliament has provided that the First Ministers are to be “appointed by His Majesty” (1998 Act s.45; 2006 Act s.46) and that, if a First Minister tenders their resignation to His Majesty, the Scottish Parliament or Welsh Senedd must “nominate” one of its members “for appointment as First Minister”, after which the Presiding Officer is to “recommend to His Majesty the appointment” of the person so nominated (1998 Act s.46; 2006 Act s.47).
The Court was supplied with materials which provide an illustration. When Scottish First Minister Sturgeon announced her resignation, there was then a 2023 party leadership selection process conducted by the SNP, prior to the vote in and nomination by the Scottish Parliament and the recommendation to the Sovereign.
The 2022 Mid-Term Change of Prime Minister
On 7 July 2022, the incumbent Prime Minister The Rt Hon Boris Johnson MP announced his resignation as leader of the Defendant (“the Conservative Party”). He said: “it is clearly now the will of the parliamentary Conservative Party that there should be a new leader of that party and therefore a new prime minister”. The Conservative Party's Constitution provides that the Party Leader determines the political direction of the Party having regard to the views of Party Members and the Conservative Policy Forum. It provides that the Party Leader is drawn from those elected to the House of Commons, elected by Party Members by a process overseen by the Party Board, with the 1922 Committee presenting a choice of candidates applying procedural rules determined by its Executive Committee after consulting the Board. On 11 July 2022 Sir Graham Brady MP, the Chairman of the 1922 Committee, announced the rules of the leadership contest, which had been agreed with the Board. First, Conservative Party MPs would vote on the prospective candidates for leader until only two candidates remained. Secondly, the members of the Conservative Party would vote on which of those two remaining candidates they wished to become leader, with the result of that vote being announced on 5 September 2022.
On 5 September 2022 the Conservative Party announced that The Rt Hon Elizabeth Truss MP had won the leadership contest. She and Prime Minister Johnson flew to Balmoral the next day, 6 September 2022, and she was duly appointed Prime Minister at the invitation of Her late Majesty Queen Elizabeth II.
And so, The Rt Hon Elizabeth Truss MP was “the accepted leader of [the] political party that commands the majority of the House of Commons” and “the party … in government” had acted “to identify who [could] be chosen as the successor” (§4 above). And so, the choice of person most likely to hold the confidence of the House of Commons was “guided by the choice of MPs or party members as to who ought to succeed them as party leader” (§5 above).
Everyone in this case agrees that “clear advice” will at that stage have been “given to the Sovereign as to who should be asked to form a government” (§5 above). This would have been on 5/6 September 2022. The Court was told this advice was likely to have been given by outgoing Prime Minister Johnson, or possibly by The Lord President of the Privy Council. Everyone agrees that the advice given to Her late Majesty Queen Elizabeth II communicated the fact that The Rt Hon Elizabeth Truss MP had won the Conservative Party leadership contest. Mr Brown says the “advice” will also have identified The Rt Hon Elizabeth Truss MP as having the ability to command, or being likely to hold, the confidence of the House of Commons.
A mid-term appointment of a new Prime Minister effected in this way is familiar in this country. As Lady Hale and Lord Reed explained in R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373, Prime Minister May was chosen as leader of the Conservative Party and took the place of Prime Minister Cameron in 2016 (§7); and Prime Minister Johnson was chosen as leader of the Conservative Party and took the place of Prime Minister May in 2019 (§14).
Writing in the Sunday Times on 4 September 2022, Jonathan Sumption listed 10 “Party Vote” handovers of the office of Prime Minister out of the 19 between Prime Minister Lloyd George in 1916 and Prime Minister Thatcher in 1979. He also said this:
political parties are not just private associations. They do not belong only to their members. In a parliamentary democracy, they have a vital constitutional role as intermediaries between the public and the...
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