Background

Gordon Brown, if he went to bed last night, did so as Prime Minister. This morning, despite what many would regard as defeat at the polls, he woke still the incumbent at No. 10.

Had the Conservative Party won a majority of seats in the House of Commons, Brown would this morning have been expected to offer his resignation to the Queen. Convention would then have required the Queen to invite David Cameron, as leader of the party able to command a majority in the Commons to form a government.

With no one party commanding a majority in the new House of Commons the position is less clear. In the short term at least, there is no imperative on Brown to offer his resignation. Despite the fact that he no longer leads the party with the most seats in the Commons, Brown may choose to remain at No. 10 and negotiate with Nick Clegg and the leaders of the other smaller parties with a view to making arrangements which will allow him to stay in power.

Only when and if Brown chooses to resign may the Queen invite another individual to form a government.

In anticipation of a hung parliament, in February of this year the Cabinet Office published guidance on government formation and the administration of government during any period of uncertainty following an indeterminate election result. It notes that "as long as there is significant doubt whether the Government has the confidence of the House of Commons, it would be prudent for it to observe discretion about taking significant decisions, as per the pre-election period." In effect, the state of purdah which has existed since the dissolution of Parliament, is extended until the Commons meets and indicates its confidence in any new administration.

Kingmaker

Throughout the election campaign, the media has dubbed Clegg as "kingmaker".

Constitutionally, prerogative as to the appointment of the prime minister rests not with the leader of the Liberal Democrats but with the Queen. However, the Palace, anxious to avoid party politics, will be unlikely to invite any individual to form a government without very clear private assurance that he will be able to command the confidence of the Commons.

A coalition of the Liberal Democrats and the Conservatives would have a parliamentary majority more than sufficient to secure an invitation from the Queen and the keys to No. 10. A coalition of the Liberal Democrats and the Labour Party, while likely to be a few seats short of a majority, would have more seats than the Conservatives alone and may be able to form a government with the co-operation of the Scottish and Welsh nationalists. By throwing in his lot with one of the other parties, Clegg may therefore effectively choose the next Prime Minister. Brown or Cameron – the choice is his - there is no imperative on him to reach agreement with the party that secured more of the popular vote yesterday.

Moreover Clegg's choice is not even restricted to the men who were presented to the electorate as candidates for job. If, as has been suggested, Brown's continued leadership of the Labour Party would bar a Liberal Democrat/Labour coalition, Brown could tender his resignation only to be replaced at No. 10 by another senior Labour politician who could secure Liberal Democrat support.

Other options

If neither of the two main parties reaches agreement with the Liberal Democrats the options appear to be a Conservative minority government or another election.

Another election is something that all parties will be keen to avoid. Being asked to make their choice again will not be popular with the electorate, and with no major shifts in policy could different choices at the ballot box be expected?

With 650 seats in the Commons, 326 is the magic number required for majority government.

Being only a handful of seats short of this, the Conservative Party may be able to take power without Liberal Democrat support, building blocks of support with the independents and the Scottish and Welsh nationalists on an issue by issue basis. Conservative strategists will in particular be looking to Northern Ireland where they may be able to rely on the support of Democratic Unionist Party, and the refusal of Sinn Fein members to take their seats at Westminster will deplete numbers on the opposition benches. Moreover, in the televised leadership debates Brown did not have a monopoly on agreeing with Nick, and it may be that the Conservatives could rely on Liberal Democrat support on some issues even if, as seems likely, a formal coalition remains elusive.

Implications for democracy

The uncertainty as to who takes office as prime minister following the 2010 election result brings the idiosyncrasies of the first past the post-electoral system into sharp focus.

More than ever before, the election campaigns of all three parties were focused not on policy but on the personalities of the party leaders. The electorate has been asked not who do I want to represent me at constituency level, or even which party offers the best policies for the United Kingdom. The televised debates, which so dominated the election campaign, instead set the question - which of these three men would you like to be prime minister?

The electorate has answered this question; Cameron has secured 36.2 per cent of the popular vote (significantly more than either Brown – 29.1 percent – or Clegg – 22.9 per cent), and yet there is no certainty that he will be invited to form a government today, tomorrow or even within this Parliament. The United Kingdom's electoral system is not constructed around personality and is now arguably out of step with the public's perception of the democratic process.

That Brown, with just 29.1 per cent of the popular vote, or a senior Labour politician on whom the electorate have not had chance to pass judgement, may instead occupy No. 10 is perhaps indicative that the time for electoral reform has come. Ironically, it is Clegg the kingmaker, with the Labour Party dangling the carrot of a referendum on electoral reform before him, who may now take a decision which most of the electorate thought was theirs.