Ramifications of a hung parliament after UK election

Five years ago, Gordon Brown stayed in Downing Street while negotiations that led to the formation of a new government in the wake of a hung parliament were under way. In time, the drama led to books with exciting titles, such as Five Days in May.

Today, few would make predictions about the drama that will take place after voters in the UK cast their ballots on May 7th, though it may well be more than five days before their decision turns into an administration.

For now, Conservative prime minister David Cameron is pushing for majority rule, telling voters that party pledges inevitably "get haggled away" in post-election talks – unless voters make clear choices.

However, the landscape could be immensely tricky, complicated further by the very legislation that Cameron conceded to the Liberal Democrats when setting down parliamentary terms that now last five years.

So what happens if the voters’ decision leaves no one party with a majority?

“There is always a government, there is always a prime minister, bar the 20 minutes going up and down the Mall,” says Peter Riddell of the Institute for Government, an independent think tank.

“It is legally necessary, for obvious reasons. The queen is not involved. Last time, she ostentatiously went to Windsor. I don’t know what she will do on this occasion,” says Riddell, a constitutional expert of considerable note in a land without a written constitution.

Rules for resignation

Drawn up by top civil servants, the cabinet manual says that in situations where the election does not result in a majority, “the incumbent government” remains in office unless and until the prime minister tenders his or her resignation to the queen.

The manual is a collection of developing conventions, but it has no force of law. Five years ago, Labour’s Gordon Brown was condemned by the right- wing press as “a squatter” when he stayed on in No 10 until the Monday afternoon after the election.

“An incumbent government is entitled to wait until the new parliament has met to see if it can command the confidence of the House of Commons,” the manual says, “but is expected to resign if it becomes clear that it is unlikely to be able to command that confidence and there is a clear alternative.

According to Riddell, all of those qualifiers gives rise to plenty of ambiguity.

Riddell is a veteran of past Westminster crises, such as the February 1974 election. when Labour won more seats but the Conservatives won more votes.

Back then, the Conservatives' Ted Heath tried to do a deal over the weekend with the Liberals' Jeremy Thorpe, but failed, giving Labour's Harold Wilson the chance to form a minority government that won a majority later in the year.

In 2010, the Liberal Democrats' Nick Clegg made it clear that he would negotiate first with the party that had the biggest number of seats, but this is not law. In fact, it does not even qualify as a convention.

“Anyone can talk to anyone,” says Riddell. “It was Nick Clegg who defined last time that he would talk to the largest party. There is no reason why that has to be the position at all. The second party might be a half a dozen seats behind, but with more votes. There is no first-go.”

No-confidence trigger

However, there is “an ambiguity” in the Fixed-Term Parliaments legislation over what happens if Cameron loses a no-confidence motion, which triggers a 14-day period for talks about forming an alternative government.

The legislation is clear about the wording of the motion that goes before MPs: “This House has confidence in her majesty’s government”. However, it is not clear, as was referred to here last week, who exactly forms her majesty’s government at that point.

“Whether you call it a flaw, or an ambiguity is an interesting question,” Riddell says. “There is a question mark there and no one is sure what the answer is. I know the lawyers and judges are not over-keen to be involved. They wouldn’t want to see a case on this.”

For now, the solution to the dilemma, it if arises, depends on breeding.

“The assumption is partly ‘a good chap’s view’ – that if David Cameron lost the second vote, because he would earlier have lost a vote on the queen’s speech, he would then immediately go and that would be that,” Riddell says.

"The queen would then call Ed Miliband, who would then table a vote in her majesty's government; he has to be PM in order to have confidence declared in HMG.

“There are problems and ambiguities,” he acknowledges. “It isn’t straightforward.”