A ‘Snap’ General Election? It’s Far From a Certainty

For the UK Constitutional Law Association – I’ve written a post about how a ‘snap’ or early general election is unlikely. As Theresa May becomes the Prime Minister, some have argued that she should ‘call’ an early general election. Those who are making these claims are being disingenuous as it is not entirely up to the Prime Minister when a general election is held, as Fixed-term Parliaments Act 2011 makes holding a early general election difficult but not totally impossible. Those who are arguing for a early general election need to explain how these difficulties can be overcome.

You can read the full article here.


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 The fact that Leadsom has since withdrawn does not mean that the 1922 Committee have not fulfilled their duty.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.

Brexit – What Happens Next?

NOTE: This post was written at 5am on Friday morning, before Cameron announced his resignation.

Once again the polls were wrong, and the UK has voted to leave the EU. Obviously, the ramifications of this decision are enormous both in the short and long term. The immediate question is What Happens Next? There are several significant issues that need to be discussed.

Legal and Constitutional Issues

Firstly, the referendum has no direct legal effect. The UK will not leave the EU on Friday or Saturday or any time soon. Legally, the referendum is purely advisory, and in theory, the government and Parliament could ignore the result of the referendum and choose to do nothing.  However, neither the government or Parliament will do that, and this vote for Brexit will result in Brexit. The reason for this legal vacuum is to allow room for manoeuvre to establish the mechanics of the negotiations required to leave the EU. The only immediate impact is that the renegotiated terms of membership that Cameron managed to secure will not come into effect.

The mechanism for a Member State of the EU to leave is provided for by Article 50 of the Treaty on the European Union. This states, at Art 50 (2) that “A Member State which decides to withdraw shall notify the European Council of its intention”. There is then a two-year period for negotiations although this could be extended by agreement. The next European Council meeting will be held on 28th/29th June. The draft agenda provides for a discussion of the “Outcome of the UK referendum”, but provides no details as to the nature of that discussion. Art 50 is clear that it is up to the exiting Member State to invoke the procedure and start the clock ticking for the negotiations.

Before the referendum, David Cameron indicted that he would be invoke Art 50 quickly, stating

“If the British people vote to leave, there is only one way to bring that about, namely to trigger Article 50 of the Treaties and begin the process of exit, and the British people would rightly expect that to start straight away” [House of Commons, Hansard, 22nd February 2016, Col 24].

Yet, it would be extremely unwise to invoke the Art 50 procedure immediately. Instead, it would be better for the government to pause for a short time, establish a negotiating position and select lead negotiators before invoking Art 50. In turn, such a pause raises the question, persistent throughout the campaign, as to whether there could be a second attempt to renegotiate Britain’s terms of membership either before or instead of invoking Art 50. On Wednesday, Jean-Claude Juncker stated that “out is out” which appears to close down any such opportunity. In order for an orderly exit, the renegotiation should be concluded before any legal or constitutional changes are made in the UK, such as the repealing the European Communities Act 1972, which gives effect to EU law within the UK. Other possibilities such as using Art. 48 to agree a bilateral treaty between the EU and the UK are fanciful and not in Britain’s interest.

Another interesting feature is that the result shows that MPs with 2/3’s of all MPs supporting remain, the House of Commons is substantially out of line with the views of the electorate. This raises the question regarding the conduct of the negotiations and the role of Parliament in scrutinising the proposals and government’s stance. The default constitutional position for international treaties is that it would be up to the government to negotiate the terms of exit with no formal role for Parliament whilst negotiations of the terms of exit are ongoing. This is likely to be unsatisfactory for many MPs, particularly those supporting Brexit, and either votes within Parliament on the renegotiation will be promised as a result of political necessity, or legislation will be introduced securing parliamentary scrutiny over any treaty setting out the terms of Brexit. This may build upon the process outlined under the Constitutional Reform and Governance Act 2010, which grants Parliament a limited power of veto over an international treaty.

Political Considerations – Cameron’s Position

The political implications of Brexit are likely to be dramatic. Despite Cameron’s intentions to remain as Prime Minister, and to “implement the will of the British people”, it seems very difficult to reach any other conclusion than Cameron announcing his intention to resign very soon. This is because the referendum result can only be interpreted as a rejection of a fundamental aspect of Cameron’s economic, domestic and foreign policy. Furthermore, it is a specific rejection of Cameron’s terms of renegotiation, and consequently there will be a lack of confidence in Cameron’s ability to negotiate robust terms of exit. Yet, it must be emphasised that Cameron will be unlikely to leave Downing Street almost immediately, as the outgoing Prime Minister can only tender his resignation once it is clear they can advise the Queen as to who she will appoint in their place (Cabinet Manual, Para 2.10). Usually, this will require a leadership election which will take around 2/3 months. Consequently, any odds that Cameron will move out of Downing Street by the end of June (currently 3/1 with William Hill) are very poor value indeed.

Should Cameron decline to indicate his intention to resign or set out a timescale for his future, the long-stop position is a leadership contest triggered by Conservative backbench MPs through the 1922 Committee. To trigger a leadership contest, there needs to be fifty letters of no confidence in the Prime Minister lodged with the Graham Brady, the Chairman of the 1922 Committee. The number of letters currently lodged is apparently three, with letters from Philip Holborne, Nadine Dorris and Bill Cash already under lock and key with Mr Brady. Overnight, a letter signed by 84 MPs pro-Brexit Conservative MPs was published supporting Cameron whatever the result of the referendum. Whilst this may shore up the Prime Minster’s position for now, it is unlikely to alter the fundamental dynamics in the long term, given that the Prime Minister has indicated his intention not to seek a third term.

An Early General Election?

Watching the BBC, a question of depressing regularity is the whether there should be an early or ‘snap’ general election. Indeed, earlier this week, Jeremy Corbyn stated that Labour was ready for a ‘snap’ general election. This is not going to happen. Under the Fixed-term Parliaments Act 2011, the date of the next general election is 7th May 2020. It can be earlier, only if 66% of MPs vote for an early election, or the government loses a vote of no confidence and no alternative government is found within fourteen days. Neither of those possibilities are likely. A further possibility is that Parliament could repeal the 2011 Act, but this is also unlikely. The issue of an early General Election will be discussed in a later post.