If you thought Labour Rules for selecting leaders were bad, you’re going to love these…
They really are dreadfully drafted but here’s what I think they mean.
The key is Rule 3.
It’s the duty of the 1922 to present a choice of candidates to the Party. The Party is defined (clause 1) as the Conservative and Unionist Party. And it shall consist of its members (clause 3). So, read naturally, the duty of the 1922 Committee is to give a choice of candidates to its members. This interpretation is rather supported by clause 10 (and the reference to “elected by the Party Members and Scottish Party Members”).
And also the following words in Rule 3 (“selects candidates for submission for election”). And Rule 5 which makes it clear that the final choice rests with members.
The Rule 3 duty arises: “Upon the initiation of an election for the Leader.” This language most naturally refers to the point at which a vacancy for party leader arises and the process for selecting a new leader starts. Read as such, the 1922 Committee has a duty to put two candidates before the Members. In a world in which there was only one nomination – or only one valid nomination – for Leader then rules 4 and 7 make clear you don’t need an election. But we are not in that world. There were a number of nominations – and it was not suggested they were not valid.
Does the 1922 Committee (by Schedule 1 a Committee comprising all Conservative Members of Parliament) have power to change the Rules? Only if the Rules enable it to – and they don’t (see Rule 90). The 1922 Committee has a limited power to set out the procedure for choosing candidates to submit for election to the members (see Rule 3). But it’s pretty punchy to suggest this gives it power to ignore valid nominations given it has a duty to present to members a choice of candidates.
So what happens next? The safe thing to do would be to call for nominations again. It feels to me rather risky just opting for Michael Gove: who knows who Andrea Leadsom’s supporters would have voted for without her in the contest? And if there are no nominations then we may well be able to enthrone Theresa May. But if there are, a choice would have to be put to members.
These are my thoughts. But do treat them with care. It’s early days. If I change my view I’ll say so here.
Follow @jolyonmaughamPostscript. I understand that the Chairman of the 1922 Committee has stated that the leadership contest is over. He may have had in mind Rule 35 of the 1922 Committee procedure for Conservative leadership elections which provides:
but, if my analysis above is correct and I have seen nothing to cause me to change my view, this Rule is beyond such powers as are available to the 1922 Committee. But in practical terms it is, of course, a moot point whether anyone will challenge the Chairman’s decision.
Waiting for Godot 
With all respect, I think you are reading too much into this. It’s a political party running its internal affairs, not the constitution. Leave the legal arguments to where they belong – the Labour Party’s rules. It’s always a good spectator sport when private matters get to court.
The interesting question, though, is whether Mrs May needs or wants a general election to validate her mandate. Gordon Brown definitely suffered through not calling one when he could, though the law was different then, of course.
The politics of this do dent May’s legitimacy. To some it could appear that her supporters (at least in the media) have bullied out the other candidate before democracy has run its course. I would say this makes it more likely May will need to hold a general election.
Fortunately (for her) I can see not political reason to delay in holding a general election since the opposition parties are in dissaray.
So, if there is only one candidate, Jolyon thinks the 1922 committee has to find a second candidate or else the one remaining actual candidate cannot be validly elected? Not the best point he’s ever made, is it?
Not actually what I said. But carry on.
Assuming, for the mo, that Jolyon is correct, how could the legitimacy of May’s appointment be challenged? Is there a mechanism in the Tory Party rule book (if I gambled, I’d bet there wasn’t) or would it have to be done through the courts?
I’m just playing Fantasy Politics here, of course. While it would be enjoyable to see the buggers hoist on the petard of their own rule book, it’s obviously far more important that we have a functioning govt. in place eftsoons PM Dave’s disappearance from the battlefield.
I am not convinced by your analysis. Rule 10 makes the process subject to Sch 2. The Schedule is silent about the position if there is only one candidate after the final ballot of MPs (paras 4 and 7 only deal with the position if there is no nomination).
It is clear from paras 4 and 7 – as you accept – that there need not be an election by the party members if there is only one nomination. I agree that the rules are not well drafted, but it seems to me that such a situation must be read as not conflicting with the duty in para 3 to present a choice.
If this is right, then there seems to me no reason as to why there would be an actual conflict in the present circumstances. Para 35 of the 1922 Committee procedure provides for the same possibility of ratification if there is a withdrawal after the final ballot. The procedure is given force by para 3 of Sch 2. It could not make provisions contradictory to para 3; however, as explained above, if paras 4 and 7 can coexist with para 3, then I do not see why para 35 of the procedure cannot also do so and make analogous provision. This is to my mind the most sensible interpretation of the rules.
(BTW I agree with you about the Labour Party rules, and that 2(B)(ii) should apply only to nominations by challengers).