30th August 2022
Before I became a lawyer, I wanted to be a historian and, in particular, a historian of the concept of the “state”.
The “state” – forgive the quotation marks – is, in one way – something which exists only in the mind, as a label we give certain things around us.
Yet in another way the “state” has a real existence – and some on the left demand “the state should do this” or on the right that “the state should not do that”, both presupposing that something called the “state” exists, and it can be called on to do or not do things.
Some attribute to the “state” the same qualities of omnipotence, omniscience and omnibenevolence that some people even now ascribe to various gods (or “gods”).
But.
I did not do the envisaged postgraduate work on intellectual history, and I fell into being a lawyer instead.
And part of the reason was that with law there were debates and discussions about what the “state” should do and not do, and what were its limits, that seemed more practical, urgent and uncertain in their outcomes than in the academic study of political ideas.
Indeed it was a 1996 article about whether the Jockey Club was amenable to judicial review that first started me thinking seriously about a career in advising on public law.
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Judicial review is the term lawyers in England and Wales give to both procedure and the substance of holding public bodies to account in the courts.
Often what constitutes a public body – such as ministers of the crown or statutory corporations – is obvious.
But the test is functional – if you are an entity exercising a public function then you are amenable to judicial review.
And this means you are subject to certain special legal duties and remedies that may not otherwise be the case.
So it matters – practically – whether you fulfil the test of exercising a public function.
(Related areas of law – such a freedom of information – have fixed lists of what are public bodies and do not have a functional test.)
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The folk at the Tortoise news and commentary site have decided to send a legal letter threatening an application for judicial review against the Conservative Party.
The letter is worth reading in full.
There are two things worth saying about the letter.
First, the application is what a judge would say is “ambitious”.
Each element of the application is arguable (sometimes only just) – but that an element of a case is arguable certainly does not make it strong.
In essence, that a point is arguable is the test for simply getting it before a tribunal – the minimum required.
Perhaps a positive judge on a sunny day and after a hearty breakfast may give the envisaged claim the judicial thumbs up.
Predicting litigation is never an exact science.
But.
It is unlikely that any court will want to bolt political parties onto the state for the purposes of judicial review – especially when political parties have their own special regulatory regime, and it is the Queen who choses who is invited to be Prime Minister.
The case is likely to fail.
Two, Tortoise has a point – despite the weak legal merits.
A membership-based national political party is conducting an exercise that will lead to the successful candidate being – almost certainly – invited to become Prime Minister and we know very little about how that exercise is being conducted.
(The position would be different if only members of parliament were involved.)
Tortoise are asking for disclosure of the following information:
“(1) Anonymised data you hold on the demographic of the Party’s membership:
(a) Particularly, we invite you to provide, where held, the number of Party members who:
(i) Live abroad;
(ii) Are foreign nationals; and
(iii) Are under voting age.
(b) We also ask you to provide data in respect of:
(i) The age range of members;
(ii) The geographic distribution of members; and
(iii) The genders of members.
(2) An explanation of whether, and if so how, the Party keeps its membership database up to date, ensuring that it sends ballot papers to correct addresses.
(3) Anonymised data you hold on variations in member numbers over time, presented quarterly over the past 10 years. The public interest is particularly acute in respect of quarterly membership numbers for the past twelve months.
(4) An explanation of the Party’s system of compliance, including but not limited to the following questions:
(a) How does the Conservative Party check that new members are who they say they are?
(b) Who oversees compliance? i.e. who independently checks whether the Conservative Party is checking?
(5) What is the number of efforts at infiltration which the Party has thwarted, i.e. how many cases have you discovered of a fictional person, a dead person, a person of non-voting age, a member of another political party or a pet registering as Conservative member?
(6) An explanation of any third party compliance mechanisms in place to ensure that only those eligible to vote do so, that they vote only once each, and that the election is not manipulated.
(7) An explanation of the circumstances by which GCHQ came to offer advice on the distribution of Conservative party ballots.
(8) An explanation of why non-UK citizens who join the party abroad are eligible to vote even if they pay no tax and spend no time in the UK.
(9) Confirmation of whether Party members under the national voting age can vote in the election of Party leader and Prime Minister.”
On the face of it, this is the sort of information which should be in the public domain – and this would apply equally to the Labour Party or other political party in a similar situation.
The (likely) legal fact that judicial review is not the appropriate way of getting such information does not take away from this being information which should be publicly known.
Indeed, that Tortoise is resorting to judicial review indicates – if not demonstrates – that the special regulatory regime for political parties is deficient.
And it is that special regulatory regime that should change – rather than the ambit of judicial review be extended.
Political parties are not private clubs, where there is a limited public interest in their internal affairs.
Political parties are a central feature of our political system.
They are not part of the “state” as such (though views may differ) but they are part of the oil that enable the engines of state to work.
So one can sympathise with the objective of this legal claim, even if one is doubtful of its legal merits.
That objective should be achieved by changes in legislation, and not by judicial expansion.
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A really interesting challenge, and curious to note that this wouldn’t be contentious in Scotland, where JR doesn’t have the same public/private distinction, and cases against political parties aren’t unheard of: https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2018csoh68.pdf
Could Tortoise not then duplicate the substance of this application in the Scots courts?
Political parties benefit from public funding, ought this bring them within obiligations under FOI.
If I understand correctly, there is an assumption that parliament is made up of exclusive membership clubs called parties. There is no definition of what those things are. There is an assumption that these ‘parties’ have a leader available to act as prime minister in the event they can win a vote of confidence in the house. Nothing seems to prevent people from inventing these ‘parties’ and if most MP’s decide to join one, their leader is our leader. That leader could be selected by bodyweight, age or shin kicking competition. The constitution stays silent on that.
What could possibly go wrong?
There is a lot of regulation around this. See the Political Parties, Elections and Referendums Act. But what the regulation does not do is prescribe the minutiae of party organisation though there are requirements for example that each party shall have a leader, nominating officer and treasurer. The statement that “if most MPs decide to join” a party their leader is our leader is technically true but ignores the fact most MPs are elected as members of a particular party and would be hesitant about leaving eve though they are elected as individuals and are constitutionally free to do so. Always a difficult balance between regulation to avoid impropriety and freedom for groups to propose new things.
…but…
The current iteration of the ruling party is more likely to voluntarily allow any such a change to the rules than Bournemouth are to win the Premier League.
One can only hope that the Labour Party will put this on their ToDo list, although on present form that’s going to be a very, very, long ToDo list.
S.
Didn’t someone, a long time ago, say “L’Etate c’est moi” ? Wonder what happened then.
He did cartwheels all the way to the bank. Didn’t go so well for his great-great-great grandson however :-)
You say that
“Related areas of law – such a freedom of information – have fixed lists of what are public bodies and do not have a functional test.”
But bodies which aren’t in the list of public authorities can be subject to freedom of information law, if they perform a public function.
The ICO ruled in response to a complaint by me
https://ico.org.uk/action-weve-taken/decision-notices/fer0436344/
that the Canal and River Trust is such a body.
I believe that a complaint by Fish Legal resulted in the water companies being subject to the legislation for the same reason.
No
That was not the Freedom of Information Act, but the Environmental Information Regulations (EIRS), which being based on EU law were subject to a different test.
Given current events it might be useful to know that, under the EIRs, water companies are also public authorities.
https://www.bailii.org/eu/cases/EUECJ/2013/C27912.html
Related areas of law – such a freedom of information – have fixed lists of what are public bodies and do not have a functional test.
On some future occasion I’d be grateful if you could explain this distinction a bit more. Given how much trouble the courts had to decide whether the Queen and Prince Charles were public authorities for the purposes of the EIRs I’m not sure what you mean by a fixed list.
Freedom of Information Act 2000 Sch 1 lists a couple of hundred agencies. If an agency is on that list, it’s a “public authority”.
There’s also a power in s. 5 of the Act for the Secretary of State to make orders designating additional public authorities. There is presumably somewhere a list of agencies which have been so designated (or, at any rate, such a list could be compiled).
Finally, publicly-owned companies are public authorities (s. 3(1) of the Act.)
So, at any time, you could make a list of all the entities which are public authorities for the purposes of the FoI Act under these three provisions. And, in making that list, you wouldn’t at any point have to ask what any of those entities do; their functions are irrelevant to the question of whether they are “public authorities”.
Understood, thanks. I hadn’t appreciated that the British FOI took that approach. I’ve looked at it plenty of times, but apparently never carefully enough to notice that it doesn’t work the same way other countries’ FOI laws work.
Another interesting question Tortoise could ask is if the Conservative Party requires those voting for their next leader, and our next Prime Minister, to present photo-ID — which they (including both candidates in this contest) have stated is vital to preventing ballot fraud.
Also, would there be any mileage in a Judicial Review brought against the Electoral Commission to require it to oversee party leadership elections and ascertain these points? I’m guessing there is no basis in law for this at the moment, as it’s always been assumed that everyone is an honourable ‘gentleman’ in the political parties, but I thought I’d ask the expert just in case!
They also insist that PR is completely inappropriate for electing MPs but have a very complicated alternative vote system themselves for electing a leader. This makes me and Mrs Eric very cross.
AV is not PR. It is often confused with STV, as used in Ireland, which is more proportional. If AV were used for electing MPs to single-member constituencies, the outcome could be even less proportional than today’s voting system, depending upon the demographic situation.
When the Lib-Dems tried to insist on a referendum on PR as the price for going into coalition with Cameron in 2010, Cameron negotiated them it to a referendum on the use of AV with single member constituencies instead. They were foolish to accept.
A state can exist (whatever “exists” may mean) without political parties (at least as Burke and Disraeli lead us to understand the term). Indeed using the concept of parties to analyse the politics of some states is thoroughly misleading. However Disraeli may have been right to say that without party Parliamentary democracy is impossible. As the United Kingdom is a Parliamentary democracy, it would then follow that parties are not just something we might or might not choose to have; they are integral to the British state.
Since the Registration of Political Parties Act 1998 (now replaced by PPERA) parties seeking to run candidates in elections have had to register. PPERA provides for a regulator as you observe. There is one feature of the structure that is very similar to the old SRO structure under the Financial Services Act 1986 – the parties have to certify candidates to be approved candidates to returning officers. This may provide a route to argue that parties are liable to Judicial Review in the same way that SROs were.
You are completely right about inadequacies in the regulatory arrangements for political parties. This should be put right but no party in power is going to want to put in place a tough regulatory structure. It may be that the courts do need to step in.
I have a separate comment on the Queen appointing.
On most occasions when there has been a change of Prime Minister, the monarch has been advised by the outgoing prime minister (even after an election) to send for a particular individual. Since 1923, the exceptions have been after Bonar Law (when George V sent for Baldwin having taken advice from a number of senior politicians including Balfour) and Eden when the Queen was advised by the Lord Chancellor, Kilmuir, and Lord Salisbury that a majority of the cabinet wanted Macmillan and when Churchill gave the same advice.
Although the accession of Alec Home in 1963 was controversial, the Queen acted on advice (in the form of a memorandum) from Macmillan. Subsequently I believe the outgoing Prime Minister gave the Queen a name – albeit one the Queen would doubtless have known in advance as either the winning leader of the other party or the winner of some party election.
When Boris Johnson resigns he will doubtless advise the Queen as to the person she should send for and that person will be the winner of the Conservative internal election – presumably Liz Truss.
Miller 2 suggests that it is possible to challenge by judicial review advice to the Queen. Although she prorogued parliament she did so on the advice of Johnson and that advice was found to be flawed. Is it possible that miller 2 provides a basis for challenging the advice that Johnson will give the Queen? Suppose that there were good grounds for believing that the ballot had been rigged. Would the Courts be willing to listen to the evidence and if satisfied that the advice given to the Queen was based on electoral fraud quash the advice? It seems to me that while the Tortoise letter is not alleging fraud it is questioning the validity of the electoral process. As one of the events leading up to the judgment in Miller 2 was the government not providing evidence in support of its advice, would a failure by CCHQ to answer Tortoise’s questions open the possibility to challenge the advice to appoint Liz Truss?
The courts should have no jusidiction on this matter. The Prime Minister is whoever commands the confidence of the House of Commons. In the extremely unlikely event that the Queen were to be deceived into apointing the wrong person as Prime Minister, the Commons could immediately correct the error though a vote of no confidence making their true feelings clear.
Would it not be easier to require the House of Commons (the full House) to elect the new PM? In my view this is a more democratic choice. It’s also the system chosen in the Scottish Parliament.
As a consequence, the leadership of a party would be a separate office – i.e. the leader of the majority party would not necessarily be the PM or the leader of the largest opposition party would not necessarily become the Leader of the Opposition. This would allow for e.g. Andy Burnham to become party leader or Ruth Donaldson.
I don’t believe that Andy Burnham would want to become Ruth Donaldson.
😆
It doesn’t work like that, as was discussed at length with the recent Johnson situation. House no-confidence votes are no confidence in Her Majesty’s Govt, not the PM. That’s why we had the sight of lots of ministers resigning to get Johnson to resign as PM.
I think Tortoise is asking some very pertinent questions, especially if one recalls the suspected (but uninvestigated) interference in the 2016 Brexit referendum and the known interference in the 2016 US elections.
“Political parties are not part of the “state” as such (though views may differ) but they are part of the oil that enable the engines of state to work.”
I think parliamentary procedure assumes parties exist, does that seem like a fair characterization?
As a member of a small party that is noted for its openness on everything except its membership list, I’d suggest you’re wrong: this does not require any regulation of parties: the public are free to judge parties and their internal organisation when they cast their vote at general elections (indeed, that the Tories have internal elections at all is a result of public pressure and concern).
Also, it is irrelevant whether parties have members who are not eligible to vote (the homeless can’t vote, but should be able to join parties, surely?).
Not everything can be fixed by regulation, and PPERA is already an administrative nightmare for small parties.
David concludes this piece with,
“So one can sympathise with the objective of this legal claim, even if one is doubtful of its legal merits.
That objective should be achieved by changes in legislation, and not by judicial expansion.”
Here we return to a recurring ‘problem’ identified through many of David’s articles: the fact that today, the machinery of state has evolved a de-facto system of self-protection.
Idealistically, we might hope that an Opposition Party winning power after an administration hit by scandal would set, as part of their first term in office, a schedule for their parliament that introduced laws, rules or limitations that would be effective in preventing a repetition of the prior administration’s scandal.
In reality, if we were able to wait for such legislation to be put before the house, we might well first witness the “big crunch” of the universe. Not because our parliamentarians are particularly inefficient (although they do seem to be) but because they have no incentive to legislate away something that can be (ab)used by any and every party that forms a majority government.
It is naive – and dangerous – of us to take this view.
Which is why I maintain that the only safe and reliable means for holding officials to account (all MPs, all members of the Lords, all political appointees at QANGOs, all SpAds, etc.) is to have a *completely* separate body, for example one with a democratically elected membership but with a leadership deliberately weighted to give majority to the party forming HM Opposition, granted a remit to oversee the conduct of the administration.
One of the greatest dangers we face today, as a democracy, is that the ability of HM Opposition to “hold the administration of the day to account” has been completely eviscerated. PMQs? Don’t make me laugh.
I would sincerely hope to be able to support your view that legislation needs to be introduced to protect this most fundamental part of our democracy. But I submit that the government of the day – and many predecessors-in-interest – have no incentive to comply.
As Lord Acton advised Bishop Mandell Creighton in 1887:
“Power tends to corrupt, and absolutely power corrupts absolutely.”
Responding to Sproggit’s comments, we already have a ‘completely’ separate body which politicians state is ‘independent of government’. It is called the Parliamentary and Health Service Ombudsman. The legislation governing his activities, when introduced in 1967, was described as ‘a swiz’ by Quintin Hogg who led for the Conservatives in the debate.
The ‘swiz’ has been perpetuated for 55 years. An attempt to modify the legislation in 2016 failed through lack of parliamentary time. A growing number of people feel that the Ombudsman does more to protect the State than it does to hold it to account. The websites at ‘PHSO the true story’ and ‘PHSO Trust Pilot’ both identify the issues and public frustration.
Once you have accepted that there is such a special group and the Opposition Party you have already lost. MPs first duty is to Queen and country – not to a private organisation. Any who give priority to such an organisation are thereby corrupt.
One sympathises, but presumably the core counter-argument is that, UK-constitutionally-speaking the members, are not choosing a Prime Minister – they are choosing a party leader, which is their business. It is extremely likely that more than 326 MPs will then commit to confidence in that leader as Prime Minister, but that is in principle their subsequent choice, and that is where the constitutional magic happens. The fact that those MPs appear to have committed themselves to use their power to once more support an unsuitable person is on them and their (apparently non-existent) consciences. Sadly it is not possible for a court to actively direct Members of Parliament to be responsible stewards of the nation without really scrapping Parliamentary sovereignty.