A letter to Conservative Party headquarters – 17 August 2022

17 August 2022

Darren Mott, CEO
Conservative Party
CCHQ

cc Ben Elliott, Conservative Party chairman
cc Sir Graham Brady MP, Chair Conservative Party 1922 Committee

17 August 2022

The Conservative leadership election

Dear Mr Mott,

Introduction

The Conservative leadership election will decide who becomes the next Prime Minister of the UK, but little is known about those eligible to vote.

This letter is a request for the Conservative Party to release information as to its members and its processes. The request is made under common law and Article 10 of the European Convention on Human Rights (“ECHR”).

Background

The results of the Conservative Party leadership election are expected by 5 September 2022. The winner of that vote by Party members will be the Prime Minister.

In the past few weeks, our reporters have made repeated requests to the Conservative Party to answer questions relating to the integrity of the vote for the country’s next leader. We believe the public is entitled to have information as to the number of foreign born and minor individuals on the Party’s membership list, how the Party ensures the people on the list are who they say they are and how it prevents foreign interference, ballot stuffing and foul play. The Party press officers have declined to help; when our reporter visited CCHQ, they were turned away; on one occasion, the press officer simply hung up.

No information being provided in answer to our questions, we have carried out some checks of the Party’s processes. Over the last week, we have successfully registered Archie Harding, a pet tortoise, two foreign nationals and Margaret Roberts, the maiden name of the late Prime Minister Lady Thatcher, as members of the Conservative Party. In each case the Party has accepted the fee for membership, issued a membership number and invited the new ‘members’ to attend leadership hustings and participate in Party efforts. The Conservative Party has, we know, made clear that only people who have been members for three months can vote in the leadership election. The Party has, separately, confirmed that foreign nationals who are members can vote in the leadership election and, therefore, choose the next PM without being able to vote for an MP.

In inviting members to choose the Party’s leader, as it has done since 2001, the Conservative Party plays a constitutional role in our democracy. The election of a new leader of the Party is the de facto election of the Prime Minister. It is difficult to conceive of anything which is a more important public function than the appointment of the head of Her Majesty’s Government.

Request and Legal Basis

On behalf of Tortoise Media I request you, as the Chief Executive of the Conservative Party, to provide the following information within 7 days:

1. Anonymised data you hold on the demographic of the Party’s membership:
   Particularly, we invite you to provide, where held, the number of Party members who:
   – Live abroad;
   – Are foreign nationals
   – Under voting age
   We also ask you to provide data in respect of:
   – The age range of members;
   – The geographic distribution of members; and
   – The gender balance
   
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 the following questions:
   – How does the Conservative Party check that new members are who they say they are?
   – 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 bot, a person of nonvoting age or a member of another political party 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.

The request for information is made at common law and under Article 10 ECHR. We go on to address why any reliance on the GDPR, as a reason against releasing the information, would be misconceived.

Common law

The Supreme Court in Kennedy v Charity Commission [2014] UKSC 20 recognised a common law principle of open government. Refusal to comply with that principle is challengeable by judicial review proceedings. The same route of challenge is available in respect of refusal to comply with the Human Rights Act 1998. Disclosure at common law is required so as to enable “public scrutiny and awareness of the adequacy of the functioning and regulation” of something so vital to public life (see Kennedy at paragraph 49).

Where there is a genuine public interest in disclosure and where the information is sought for legitimate journalistic purposes, there is a common law presumption that a public authority or body exercising a public function will release the information. That is subject to countervailing public interests in the information being withheld. We cannot envisage there being any public interest in the election of the Prime Minister being the subject of a secret process. The Conservative Party has identified no such reasons to date.

The public interest in the requested information being provided to us, for the purposes of publication, is overwhelming. The Prime Minister, elected by an association of members, will have powers unconstrained by Parliament, including authorising military action, appointing the Cabinet and vetting all significant public appointments including to the House of Lords. So far, the only information released by the Party to the press about its members is a rough estimate of their number in the past: no figure has been given for the current total, even approximately. The most recent figure represents barely 0.3 per cent of the electorate. We are not writing to you to argue whether this is more or less democratic than MPs choosing the leader of the Parliamentary Party; we are writing to ask you to recognise the public role the Party is playing in our democracy and, given the importance of the public function you have taken on, to operate to the same standards of transparency and accountability as a public authority.

We understand that whether or not an individual is a member of a political party – any political party – is a personal matter. We are not asking you to disclose names, or any identifying personal data, of Party members. Instead, we are asking that the Party is willing to be accountable, that the voting register is independently verified, that voting is not susceptible to foreign interference and that the Party is not unnecessarily secretive. By allowing us to publish information in respect of these matters, the Party will serve the public interest that allows public confidence in our democracy.

Article 10 ECHR

The Conservative Party is exercising a public function in the election of its leader. Because its leader will be the Prime Minister, its leadership election is a de facto election of the head of Her Majesty’s Government. Accordingly, the Conservative Party must act consistently with the Human Rights Act 1998 and the ECHR in the performance of this public function.

Article 10 ECHR provides every person the “freedom to… receive and impart information and ideas without interference by public authority and regardless of frontiers”.

In Magyar Helsinki Bizottság v Hungary [GC], no. 18030/11 the European Court of Human Rights (“ECtHR”) held that Article 10 ECHR puts a positive obligation on public authorities or those exercising a public function to provide information to the public where the threshold is met and where it is in the public interest. Although this right had not always been recognised in the past by the Court, Magyar Helsinki Bizottság represented a “clear and unequivocal change in the case-law” (see ECtHR’s Guide on Article 10, p.8).

This request for information passes the threshold for the engagement of Article 10 which the ECtHR described in that case (see paragraphs 158 – 170):

1. The purpose of the information request – We are making the request so as to receive and impart information to the public. If the information is withheld by the Conservative Party, there is no other way for the public to find out that information.
2. The nature of the information sought – It is in the public interest to disclose the information. The information would provide “transparency on the manner of conduct of public affairs and on matters of interest for society as a whole and thereby allows participation in public governance by the public at large” (see paragraph 161). These circumstances meet all of the criteria in paragraph 162: “The public interest relates to matters which affect the public to such an extent that it may legitimately take an interest in them, which attract its attention or which concern it to a significant degree, especially in that they affect the well-being of citizens or the life of the community. This is also the case with regard to matters which are capable of giving rise to considerable controversy, which concern an important social issue, or which involve a problem that the public would have an interest in being informed about.”
3. The role of the applicant – This is a request made by the press, fulfilling our “essential role…in a democratic society” (see paragraph 165).
4. Ready and available information – We very much anticipate the Conservative Party will have ready access to all of the information sought. If it is not readily accessible, we invite you to state this and explain your reasons. In any event, the fact that information is not readily accessible is not itself a reason for it to be withheld.

GDPR

One of your staff refused to confirm details about the Conservative Party’s membership, including its total number of members, for “GDPR reasons”. We do not know whether you will continue to rely on the GDPR, or data protection law more generally, in response to this written request. We anticipate that, having taken legal advice, you will not do so.

It is clear that the GDPR and/or the Data Protection Act 2018 provide no good reason for withholding the information we are requesting. Both pieces of legislation protect “personal data”, that being data from which relates to an identified or identifiable individual. We have intentionally framed our request so that the information would not lead to any person being identified or identifiable. We are not seeking any person’s name or other personal data.

If you consider that the information requested would mean that a person is identified or identifiable, we would invite you to (a) explain your reasons for reaching this conclusion and (b) release such anonymised information as would not mean that a person is identified or identifiable.

Next Steps

If you are unable to provide any of this information we would be grateful for an explanation of the legal grounds for withholding it.

Yours sincerely,

James Harding
Editor
Tortoise Media