Through the early hours of Friday morning, the result of almost every seat will be eagerly awaited to compute the make up of the next Parliament.

The consistent opinion poll picture in the last few weeks suggests a hung parliament could become a reality once all the votes have been counted.

Naturally the possibility of such an outcome has raised questions as to the results. Could Gordon Brown stay on? Will David Cameron concede? And what of potential kingmaker Nick Clegg?

Given that the Lib Dem leader could potentially hold the balance of power, even before the election campaign officially began, Mr Clegg faced questions about his potential response if the electoral result was indecisive.

The Claim

In his March party conference speech he set out the Liberal Democrat stall:

He said: "This election is a time for voters to choose, not a time for politicians to play footsie with each other. The party which gets the strongest mandate from the voters will have the moral authority to be the first to seek to govern."

Much was made of Mr Clegg’s definition of what constitutes a strong mandate, but will he have the constitutional grounds to act on this statement, should the opportunity present itself on Friday morning?

Analysis

Aware of the possibility of a hung Parliament, Cabinet Secretary Gus O’Donnell was tasked with drawing up guidelines based on British constitutional conventions.  

The guidelines make clear that the key for any Government is to be able to command the confidence of the House of Commons.

Contrary to Mr Clegg’s suggestion however, if we do get a hung Parliament then Mr Brown, as Prime Minister, will have the first entitlement to seek to govern regardless of the size of the mandate.

“An incumbent Government is entitled to await the meeting of the new Parliament to see if it can command the confidence of the House of Commons or to resign if it becomes clear that it is unlikely to command that confidence.”

In theory then, as Parliament does not return until Tuesday 18 May, Mr Brown can stay on for PM for weeks yet as he tries to put together a workable arrangement with the other parties.

However, it could quickly become clear in negotiations that the other parties will not support Mr Brown as Prime Minister. At that point, as the guidelines suggest, Mr Brown would have to resign and the Queen would ask another to try and form a Government.

The guidelines explain: “Where a range of different administrations could potentially be formed, the expectation is that discussions will take place between political parties on who should form the next Government.”

As Prime Minister it is Mr Brown who must first advise the Queen on who could most likely command the confidence of the Commons, before tendering his resignation.

Conclusion

If Britain does get a hung parliament then intense negotiations will begin to determine the shape of the next Government. If the Liberal Democrats hold the balance of power then Mr Clegg will be centre stage.

Depending on the outcome, the process could take somewhere between hours and weeks. Either way, until negotiations are concluded, Mr Brown will remain as leader of the country.

Mr Clegg’s position was that the moral authority to govern stemmed from having the strongest mandate from the voters. This may be his guiding principle, but, the constitutional convention says something different.

Unless the Labour party lose the election outright, Mr Brown will, at least initially, remain the Prime Minister and have the first right to try and form a Government.

By Tim Swain