‘To Conclude Political Parties Do Not Fulfil a Public Function is Fantastical’

Liz Truss was elected as Leader of the Conservative Party in September 2022. Unable to outlast a lettuce, she was soon succeeded by Rishi Sunak, the safe pair of hands needed to restore an economy that had taken a running jump off a high cliff. 

On both occasions, the new Prime Minister was not chosen by an electorate of 60 million people, but an electorate of barely 200,000 – those people who had paid to become a member of the Conservative Party. When this electorate made its choice, it shifted the British constitution into gear.

Outside 10 Downing Street, a government Jaguar rolled into place, ready to chauffeur the latest PM-in-waiting up Whitehall and down the Mall to Buckingham Palace. Appearing before the monarch, they would be invited to form a government. This invitation may be formally at the behest and the discretion of the monarch, as one of their few remaining royal prerogatives. But the substance of the invitation is crafted by the Conservative Party membership (or the membership of whichever party holds a majority in the House of Commons). 

But the default position of the UK’s unwritten constitution is that the state has no interest in the Conservative Party and its membership. It is a private, unincorporated organisation, beholden to nothing and to no one but itself. It may have helped select 28 prime ministers, and every high ministerial office over the past 13 years may have been filled by someone from the Tory ranks, but the party is a private institution, not a public one. The rules that it makes, and the decisions which its membership comes to, are only a going concern for those inside the party. 

Tortoise, the ‘slow news’ organisation, challenged this status quo in the High Court, arguing that political parties like the Conservatives are not purely private organisations, but semi-public ones. That their function is inextricably entwined with the British state and, when it steps out of its private sphere and onto public terrain, that it should be scrutinised in the same way as any other public body. 

Lang J in the High Court rejected this, writing that “it is not a public body and it does not exercise public functions… the election of the leader of the [Conservative Party] is not a function of a public law nature”. Whether or not the leader becomes Prime Minister is “a prerogative power of the monarch, and the [Conservative Party] has no powers in this regard”. 

There is an Alice in Wonderland air to this reasoning, but it did not stop Fordham J. coming to the same conclusion. 

In a decision handed down this week, he dismissed Tortoise‘s claim, writing that “the appointment of the Prime Minister has not been ‘outsourced to a political party’”. The Conservatives may have changed their leadership, but the question of whether their leader becomes prime minister is still in the hands of the monarch. 

In part, Fordham decided this on the basis that the Conservative Party’s role within the constitution is not one that could be fulfilled by a local authority or statutory body. Such a situation would be a “massive surprise” verging on an “impossibility”.  

Fordham may be right on this latter point, but the counter-hypothetical that it entails is tenuous. 

Any lacuna left in the British constitution as a result of the extinction of political parties could not be filled in by a state body, but equally, the mass extinction of political parties would not give the monarch an unchecked right to nominate whoever he fancied as prime minister. The monarch would have to ask the people. From here, it follows that the members of the Conservative Party (or any other political party), so long as they are given the say on who should be the leader of their party, are exercising a public function. They are a proxy for the people.

Doubtless, Fordham considered this, and dismissed it on the basis that the UK does not have a presidential system, but a parliamentary one. Voters do not elect an individual, but a party. At the last election, they gave the Conservatives a majority and, with this majority, they can do whatever they want – up to and including appointing whoever they want as leader. 

Such an argument is orthodox. But in its orthodoxy it is obsolete – unable to grapple with the contemporary reality of the British constitution. 

Britain may still have the superficial structure of parliamentary elections, but these elections and the nature of the prime-ministerial office have transmogrified into de facto presidential elections.  As I and others have noted, the British executive now holds the whip-hand over the state, with ultimate power wielded by No. 10, not by the Palace of Westminster. 

The only mechanism really available to Conservative MPs concerned about the leadership is to hold a vote of no confidence. But this forgets how partisan British politics is today.  When you consider this, and the character of most Conservative MPs, and the odds of them choosing a vote of no confidence and a general election over buckling down and accepting whoever the membership choose as leader are nil. 

These, after all, are MPs who watched Boris Johnson desecrate every constitutional norm going en route to his slow-motion resignation (which was only because of internal party politics), only threw Liz Truss out after she tanked the housing market and the economy, and who are still lending support to Rishi Sunak as he tries to pass legislation denying reality in Rwanda.

To suggest that the decisions of the members who have let this trio of incompetents occupy the highest office in the country should be immune from judicial scrutiny, on the basis that Parliament will hold whoever they choose to account, is equivalent to arguing that all the chocolate fireguard needs to work is sugarcane icing. 

This does not mean that Fordham’s substantive conclusion in this case was wrong, however. 

Tortoise may have challenged the private status of the party, but this was only in a bid for information on the membership of the Conservative Party. Nothing in the information sought was likely to cast doubt on the party’s processes or on the selection of Truss and Sunak. Tortoise‘s readers may have some interest in the process, but mere curiosity is not enough to set aside foundational constitutional principles. 

But Fordham could have rejected the substance of the claim while still accepting that political parties play a vital role in the state, and that this role is a public one that, given the right circumstances, the courts have jurisdiction over. 

Conservative members select the leader of their party and, history shows, a prime minister (at least more often than not). To conclude that they, and other political parties, do not fulfil a public function is fantastical. 

The Government might be trying to sign treaties with Rwanda that force the country and the courts to ignore the evidence of their eyes and ears – but this doesn’t mean the courts should get on board with this approach too.