End of the Party
The decision by Tortoise Media to submit a pre-action protocol letter to the Conservative Party yesterday, ahead of a potential judicial review claim, attracted a lot of attention in the legal news sphere.
While the media company may have succeeded in generating a few headlines on a slow news day, let us be under no illusion here: the claim is doomed to failure before it even begins.
The political basis for the claim is solid: the way that the Conservatives are choosing the next leader of the country is undemocratic. A few thousand members of the party will cast ballots and while that vote is to ostensibly choose a new party leader, Liz Truss or Rishi Sunak will become the new prime minister as well without having to face a general election.
Despite all that, the new prime minister will, in a constitutional sense, be chosen by the Queen because they will be able to command a majority in the House of Commons. Given that the majority of MPs are Conservatives and each of them will accept the result of the leadership contest, there is no doubt that Truss or Sunak will enjoy their support.
The internal workings of political parties are not (and should not) be subject to judicial review. Judicial review is reserved for public bodies or bodies that exercise a public function. As we saw in the famous case of R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993], private clubs are not subject to that sort of scrutiny and the Conservative Party falls into that category.