Hung parliaments used to be a rare political beast. 

Until today, only two UK parliamentary elections since 1929 had failed to deliver an absolute majority: the election of February 1974 (after which the Parliament formed only lasted until October that year) and the May 2010 election which resulted in a Conservative / Liberal Democrat coalition government. And now, once again, no single party has returned an overall majority.

In the absence of a written constitution, there are no hard and fast rules dealing with the formation of a Government in the event of a hung Parliament. There are, however, a number of conventions and precedents that may be followed.

What happens next?

There are a number of options for Prime Minister Theresa May:

  • She may resign from office immediately - though this has already been ruled out;
  • She may remain in office to try to negotiate a coalition or form a minority government - this seems to be her intention at the moment; or
  • She may seek a fresh election.

Another election?

It used to be that Prime Ministers simply required to ask the Queen to dissolve Parliament and call a new election, as the dissolution of Parliament was part of the (now famous, following the 'Article 50 case' earlier this year) Royal Prerogative. However, the UK constitution has been revised in recent years. Thanks to the Fixed Term Parliaments Act 2011, the calling of a general election is now a statutory rather than a prerogative matter. The standard rule now is that the UK Parliament sits for fixed terms of five years between general elections. Hung parliaments can throw a bit of a spanner in the works.

As a result, it would only be possible for Mrs May to request a second dissolution of Parliament once the newly elected Parliament has been convened. Under Section 2 of the 2011 Act there are two means for calling an election outwith the five year time-frame. The House of Commons can pass a motion by a two-thirds majority calling for an early election (as indeed happened for the election just held). Alternatively, the House can pass a vote of no confidence in the Government by a simple majority, which automatically triggers the calling of fresh elections.

Until the new Parliament is convened the Prime Minister will remain in office (assuming she does not resign), and the current Government will continue in office as a "caretaker administration".

Other options

With one seat left to declare, the Conservatives could be left with 12 fewer seats at Westminster than at the time the election was called. The Prime Minister appears set on staying in office with the support of the DUP, but on an issue-by-issue 'confidence and supply' basis rather than a formal coalition like the Conservative / Lib Dem Government of 2010-2015.

An alternative is that any party that thinks it might have enough seats - in reality only the Conservative or Labour parties - may attempt to form a minority government for the shorter or the longer term, depending on whether and for how long it can command the confidence of Parliament. In the event of controversy over any attempt to form a minority government, the Queen's position as "appointer" could become more difficult. An argument could be made that the changes brought in by the 2011 Act would strengthen the position of any minority government.

Historically, failures to have a Queen's speech or budget approved have resulted in toppled governments, but under the 2011 Act these events wouldn't necessarily demand snap elections unless accompanied by a no confidence vote. This could have the potential to lead to protracted difficulties, though only in the highly unlikely case of a minority government too weak to be able to pass a budget or agree a legislative program, but just strong enough to stave off votes of no confidence.

The Role of the Monarch

The constitutional implications of a hung Parliament are particularly interesting as, in the absence of an agreement between the parties as to how to proceed, the Queen may have to intervene. In doing so, she may move from a role embedded in the "dignified part" of the constitution to one which is very firmly rooted in the "efficient part".

The Queen retains a number of personal prerogative powers including the power to appoint the Prime Minister and to dissolve Parliament. In the event of a hung Parliament, the Queen may act as a facilitator where no agreement can be reached amongst the political parties. In doing so, the Queen will take advice from her private secretary and any other appropriate constitutional experts.

The Scottish experience

The Scottish Parliament, of course, produced a coalition for its first two terms and minority SNP Governments following the 2007 and 2016 elections. Falling short of an outright majority in the Scottish Parliamentary elections is virtually inevitable given the proportional representation voting system that applies. Under the Scotland Act 1998, while the Queen formally appoints the First Minister, the nomination is made on a Parliamentary vote.

In the event that the 129 MSPs cannot agree on a choice of First Minister within 28 days of a Scottish General Election being held, an extraordinary General Election follows automatically. These provisions impose a degree of structure and order on an otherwise fraught political process, which Her Majesty might yet wish were in place at a UK as well as a devolved level.

This blog is an update of a blog we posted in the run-up to the 2010 election. Plus ca change...