http://www.guardian.co.uk/commentisfree/2010/may/08/general-election-2010-hung-parliament1
http://is.gd/c0Hz3

Sean Doran wrote:

Harpee became Prime Minister because PMJ acquiesced.

The convention (of constitutional weight) is that before an election there is a codification of a "Cabinet Manual" which is given by the government of the day (taking legal advice) to the permanent civil service which delineates how it should operate in circumstances like these (or the death of the PM or his winning rival or both, for example).

The Prime MInister has the right to confront Parliament and demand that the House of Commons allows him to govern according to the programme delivered in the Speech from the Throne (the Queen's Speech here) and grants him Supply according to his budget, and so forth.

However, between dissolution of Parliament and the positive expression of confidence (by endorsing the Speech and granting Supply) there are statutory and conventional limits to the Prime Minister's power. In particular, while he may technically make all sorts of Orders-in-Council, statute, the Cabinet Manual, and convention put strong limits on that where it is not abundantly clear that the Prime MInister may not secure the confidence of the House of Commons. This includes important actions like filling vacancies in senior courts, appointing Senators (or peers here), and so forth, that are all normally powers exercised on the advice of the Prime Minister. The system is designed to impose maximal roadblocks between the Prime Minister and the Governor-General (or Queen) so as to avoid one of the possible democratic crises that the codified parts of the constitution might not cope well with.

However, a Prime MInister may name a successor of his or her choosing, with succession taking place at a date and time of his choosing. When Prime Ministers resign, they do this, including when they resign in the face of a clear majority being won by another party. PMJ remained Prime Minister for several weeks after "resigning", and followed the principles laid out in the Cabinet Code (and convention, with respect to Orders-in-Council, notably involving Harper in those) and statute (some regulatory powers are suspended when Parliament is not sitting, some regulatory powers require Parliamentary approval within a certain number of days, etc.).

PMJ could have tried to confront the House of Commons much like Brown may. In 2006 there were 124 Conservatives, 103 Liberals and 29 New Democrats. He could have done a coalition with the NDP and bought off the BQ and perhaps continued to govern for a year or two. He chose not to.

Harper, once he became Prime Minister, chose to try to govern as a minority, and has been able to secure the confidence of the House of Commons for long periods of time ever since. Until he names a replacement, or dies, or is unable to secure the ability to gain Supply and to pass major legislation immediately after a general election, he will continue as Prime Minister.

Unlike PMJ, Brown did not choose to name Cameron as a successor.

He could *technically* name someone else other than Cameron as a successor, but that would go against convention, and might not work. He would certainly be dissuaded by the permanent civil service, and the Queen's staff, from putting the monarch in a position where she would have to agree to a speculative move like that, or to refuse it. (I would expect that she would agree if Brown absolutely insisted anyway, and let the House of Commons sort out the result of not making her own mind up! However, seeing the monarch trigger a crisis that would further weaken the monarchy appeals to me in other ways... I am an antimonarchist after all). If he named, say, me as Prime Minister, that would be legal and constitutional, but I doubt I would be able to demonstrate and keep the confidence of the House of Commons (especially since I am not an MP).

He could certainly confront the House of Commons as things stand, and by the Cabinet Code he would do so on 25 May. The Code allows for that date to be reset in certain circumstances, however, and he might persuade the civil servants and palace that it would not be a disaster (nor lessen his chances of securing the confidence of the House of Commons) if that date was moved slightly to allow for him to cobble a coalition deal together. It is possible that even with all the Tories voting against Brown, and possibly some Labour MPs staying home with "influenza", that Labour + LibDems could survive a vote in the Commons because of the voting decisions taken by the small parties.

In particular, Plaid Cymru has said outright that they'd support Labour with their 3 MPs for 300 million pounds per year in budget transfers from the UK Treasury to the Welsh one. DUP has hinted that they too have some sort of price (how ironic, the Unionists bringing home English gold as reparations). That's a further 8. SNP likely would not reject such a deal out of hand. SDLP and Green would probably support LibLab. Surely the minor parties all favour proportional representation, as their MP counts would all increase under a system like AV+!

In other words, while LibLab would not have an absolute majority of MPs they might well be able to pursue a moderately progressive devolutionary legislative programme with the first major nonbudgetary legislation being electoral reform.

LibCon, on the other hand, would have a clear majority in the House of Commons, but it is unclear what sort of agreement there would be on the pursuit of a legislative agenda. Pissing off the LibDems enough that they exit the coalition would also finish the government.

The critically important thing, however, is that the Prime Minister, whoever she or he is, will have the ability to dissolve Parliament. Right now, that's Gordon Brown. Under LibLab, it might still be Gordon Brown. Or perhaps someone else in the Labour Party. Under LibCon, that would be David Cameron, and he could certainly pull the plug on the parliament before the passage of any Electoral Reform Act, and abandon any support for the idea entirely if he wins a majority thereafter. "The people have spoken and given us a majority government" trumps all, possibly including a previous referendum, if the majority is large enough.

Brown acquiescing to a LibCon alliance and instructing the monarchy to recognize Cameron as Prime Minister I think would be the worst possible outcome for the LibDems. Cameron will *have* to govern moderately and appear reasonable and centrist during a LibLab deal. If he is even remotely competent, people will fear a Conservative government less, and his seat count will increase in the next election. Just like Harper.