When Will Theresa May Become Prime Minister?

Update: This blog was written before Cameron has announced that he will hand over to May on Wednesday after Prime Minister’s Question Time. Theresa May will become the Prime Minister by Wednesday evening. 

Well this has happened fast…

With Andrea Leadsom’s withdrawal from the Conservative Party leadership contest, Theresa May will be the next Prime Minister.

But not so fast? There are two potential hurdles to clear as some have raised the possibility that either (1) there still needs to be a choice of two candidates given to Conservative Party members, with someone (such as Gove) replacing Leadsom or (2) there would still need to be a ballot of members to approve the choice of May as the Conservative Party leader. Both of these arguments can be dismissed, but this requires a reasonably close reading of the Conservative Party rules.

(1) Another Candidate to Replace Leadsom?

The argument that there needs to be another candidate is based on the following rule:

“Upon the initiation of an election for the Leader, it shall be the duty of the 1922 Committee to present to the Party, as soon as reasonably practicable, a choice of candidates for election as Leader”. (Sch 2, Rule 3)

The argument advanced here by Jo Maugham QC (amongst others), is that the 1922 Committee remain under a duty to present another candidate to the party members. I disagree; the role of the 1922 Committee in leadership contests as required by the rules is to hold the series of ballots of Conservative MPs required to whittle down the leadership candidates down to two. This 1922 have done this. The fact that Leadsom has since withdrawn does not mean that the 1922 Committee have not fulfilled their duty. Furthermore, the rules provide for when one of the two candidates advanced by the 1922 Committee then go on to withdraw. This leads us on to the second point.

(2) A Ballot to Approve May?

There is the possibility that there could be a ballot to approve May as the party leader (and so the new Prime Minister). Key here is Rule 35 which states as follows:

“Neither of the two candidates to go forward to the general membership may withdraw without the agreement of both the Chairman of the 1922 Committee and the Board of the Party. The candidate remaining would be subject to ratification under Schedule 2, rule 7. In the event of the death of either candidate the ballot of the Parliamentary Party will be reopened and re-run”.

So clearly Leadsom will (if not already) have the approval of both the Chairman of the 1922 Committee and the Conservative Party Board to withdraw from the leadership election. This then triggers Schedule 2, Rule 7. This states as follows:

“In the event of there being only one valid nomination at the close of nominations prior to the first ballot being held by the Parliamentary Party for the election of the new Leader, the election of the nominee may if so ordered by the Board be ratified by a ballot of the Party Members and Scottish Party Members to be held within one month of the close of nomination”.

There are two possibilities here. Firstly, that Rule 35 requires a vote of party members as May is the ‘candidate remaining’ is ‘subject to ratification under Sch 2, Rule 7’ and that the phrasing of Rule 35 requires a ballot of Party Members, as that is what the phrase ‘subject to ratification’ requires. Whilst it is a possible reading, it is not the most natural reading of how Rule 35 and Sch 2, Rule 7 works.

In my view, the better approach is to read Leadsom’s withdrawal under Rule 35 as triggering Sch 2, Rule 7 as a whole, giving the Board the discretion as to whether a ballot of members is needed to ratify. Essentially placing the leadership contest in the situation as if there had only one candidate for the leader in the first place. This then leads it open to the Conservative Party Board to declare May as the winner of the leadership contest without a ballot of the members, as the rule clearly gives this discretion to the Conservative Party Board. Not only is this the best reading of the rules, but it partially follows the precedent of how Michael Howard became party leader in 2003, and reflects the current politics of the situation of a basic need for a new Prime Minister as soon as possible.

(3) When Will May Become PM?

Until this morning the intention was that the new Prime Minister would be appointed on 9th September. This will now be sped up. It has to be remembered that the only person who can appoint the new Prime Minister is the Queen. This could happen quickly, and is possible for it to happen today. After a general election, the outgoing Prime Minister and the new Prime Minster resign and are appointed in around an hour, with both having audiences with the Queen in Buckingham Palace.

Whilst there is a need for May to appointed quickly, it is unlikely to happen that fast. A few days are unlikely to make a huge amount of difference, and a slight pause is probably welcome. Prosaically, the Cameron’s will have to move out of No 10 (possibly initially to Chequers), May will want some time to finalise her Cabinet (no doubt she will have thought about this already, but she will be appointing a cabinet two months earlier than she thought). Also practically, the Queen is currently in Norfolk. Whilst Cameron and May could travel to see the Queen wherever she is, presentation is important here. It’s likely that both would prefer the backdrop of Buckingham Palace and the choreography of leaving and entering Downing Street to give the impression of an orderly transition of power. My bet is that Cameron will resign after Prime Minister’s Question Time on Wednesday, with Theresa May being appointed shortly afterwards.