We in the Constitution Unit of University College London have produced guidance on the arrangements for forming the next UK government, assuming there is a hung parliament. The short answer first is: it’s complicated and great fun for anoraks but it shouldn’t mean a constitutional crisis.
David Cameron stays in office on a caretaker basis. Under civil service guidance he has to be careful to act even-handedly on the question of civil service support for interparty negotiations. For instance it would hardly be acceptable to allow the DUP to be given official assistance and the SNP to be denied it.
Two claims about legitimacy dominated the last stages of the campaign. One, that the party who wins the most seats should lead the government; and two, that it is illegitimate to rely on the votes of a party professing support for ending the United Kingdom to form the new government ( guess who?). But these are essentially self-serving and subjective political opinions more appropriate for campaigning than governing. From 8 May, they will melt away when confronted by the political realities, although the losers may cast them up from time to time.
The parties will negotiate to work out who can command confidence in the new Parliament. That will be formally established in the vote on the Queen’s Speech in 3-4 weeks’ time. In the meantime the Cameron government remains in office as a caretaker government.
Who governs in the meantime?
If Nick Clegg and the Liberal Democrats choose to resign (because they have done badly, or to strengthen their negotiating position) Cameron still remains in office as Prime Minister. He may leave the Lib Dem positions vacant, or fill just a few in case of emergencies (eg Energy Secretary). The incumbent government will be able to respond to any emergencies at home or abroad, but otherwise is limited in the decisions it can make. Ministers remain in office, even if they have lost their seats. Under the caretaker convention, the government will try to avoid taking any decisions which might bind the hands of a future government. This means that it should not embark on any new policy, let any major government contracts, or make any senior public appointments. If these are unavoidable, it should consult first with the opposition parties: as Alistair Darling did before going to the ECOFIN meeting on 10 May 2010 to discuss the first Greek bailout.
Negotiations between the parties
The parties have prepared for a hung Parliament and will have decided on their negotiating teams, their ‘red line’ issues, and their reporting lines to the party leadership and the party in Parliament. There are no rules about who has the right to be first mover. We can expect bold invitations from both main party leaders to invite other parties to join them in talks, whether theirs is the largest or second largest party. Negotiations could well last longer than the five days in May 2010, for three reasons. First, there are likely to be more parties involved. Second, the parliamentary parties will insist on being closely consulted, and being shown the text of any agreement their leaders may want to sign. Third, they will not want to sign until they have seen the detailed text: in 2010 the full coalition agreement (the Programme for Government) was not produced until 13 days after the election.
Civil service support for the negotiations
David Cameron will be asked to authorise civil service support for the negotiations, and if he does the rules of engagement should be published on Friday. They will explain what kind of support can be provided (answers to requests for factual information, but not policy advice); and which parties will be entitled to make such requests. Support will probably be limited to parties involved in negotiations about forming a new government. These need not necessarily be coalition negotiations; support arrangements for a minority government could also be included. But it might be awkward if this limitation excludes the SNP, if Labour’s line about no deals with the SNP means no talks; especially if support is provided to smaller parties such as the Lib Dems and the DUP.
The Cabinet Office has appointed liaison officers to be the contact person for each party. The parties can request information from the civil service to inform their negotiating teams. These requests will be channelled by Cabinet Office to the relevant government department, and the answers fed back through Cabinet Office to the party’s liaison officer.
Where the negotiations take place is for the parties to decide. They will not necessarily be in the Cabinet Office at 70 Whitehall, where the Conservatives and Liberal Democrats negotiated in 2010. If the parties want more privacy, they may prefer to negotiate in Parliament, which has many exits and entrances, including underground tunnels from Whitehall.
Establishing who can command confidence
Once the negotiations have concluded, it should become clear who can command confidence in the new House of Commons, and one of the main party leaders will concede to the other: as Gordon Brown did in 2010, when after five days he resigned and advised the Queen to appoint David Cameron as Prime Minister. But if it remains unclear, the default rule is that the incumbent Prime Minister is entitled to meet the new Parliament to establish whether he can still command confidence. This is done through the debate and vote on the Queen’s Speech, scheduled for 27 May (although later dates have been set aside in case negotiations last longer). If necessary, a confidence vote could be held the day after the Queen’s Speech, rather than at the end of the traditional five day debate, to establish quickly who can command confidence.