Does the pre-election UK government have the authority to start Brexit talks before a new government is formed?

Question

Given that:

1. Brexit negotiations are due to start tomorrow (19 June 2017),
2. The deal with the DUP, to give the Conservatives the majority they want, apparently hasn't yet been finalised,
3. At least not sufficiently finalised to prevent delaying the Queen's Speech until Wednesday,

is there any sense in which either of these claims is in any way accurate, and/or has any practical consequences for the Brexit talks?

1. "The UK currently has no government."
   • This assumes (possibly mistakenly on my part) that the government is suspended or dissolved in some way around the election, and resumes only after formation of a new one afterwards, leaving a gap of "no government" in between.
2. "As a result, the idea of starting Brexit talks tomorrow is absurd, because the people to whom the EU will be talking don't [currently] have the authority to represent the UK."
   • Even if claim 1 is true, this also assumes there are no contingency arrangements (which would seem to be sensible) in place for the existing/former government to continue to function until the new one is formed - and in particular, it assumes that any authority those representatives did have before the election lost it afterwards.

Is there a possibility that the legitimacy of any talks begun tomorrow could be challenged on the basis that the UK representatives had no authority to enter into them at the time? I'm assuming not, because I'd have thought any suggestion of this would be trumpeted in the news.

But if so, and assuming that the Tories do end up in an agreement with the DUP, would it just be a case of retroactively "authorising" the start of the talks? "We were in government then, and we are again now, so that little grey area in the middle has no practical consequences."

Answer 1

In the UK, a Prime Minister is appointed by the Queen, not by Parliament. Following an election, the previous government continues in office until the incumbent Prime Minister resigns.

• If election results clearly indicate a change of governing party, it is usual for the incumbent Prime Minister to resign immediately. After a landslide defeat in the election on 1 May 1997, John Major resigned on the morning of 2 May.

• If the results are less clear, the incumbent may remain in office for some time. The election on 6 May 2010 resulted in a hung Parliament, in which no one party had a majority. The Labour party, led by Gordon Brown, had previously formed a majority government; but after the election, it had fewer seats than the Conservatives. Nevertheless, Brown did not resign as Prime Minister until 11 May, when it became clear that the Conservatives and Liberal Democrats would be able to form a governing coalition.

• After the election on 8 June 2017, incumbent Prime Minister Theresa May remains in office until such time as she resigns (or, theoretically, is dismissed from office by the Queen).

Following an election, it is conventional for the government to hold a Parliamentary vote on its legislative programme soon afterwards. The programme is known as the Queen's Speech. The vote is considered a vote of confidence; so if the government loses, it cannot continue in office. It will be expected to either allow another party to form a government, or call fresh elections.

The Queen's Speech has been scheduled for 21 June 2017. It appears likely that the Conservatives can win the accompanying vote, with the support of the Democratic Unionist Party; but the vote has not yet been held, so we cannot say this for certain.

As Prime Minister, Theresa May has the authority to conduct international negotiations on behalf of the UK, including Brexit talks with the EU. Any deal she makes will subsequently be voted on by Parliament. Of course, May cannot guarantee she will be able to win that vote; but this is not a barrier to the talks going ahead.

Additional notes:

1. The above has a lot of caveats like "conventionally" and "expected". Under the UK's unwritten (non-)constitution, many things are settled by custom and precedent. British government is to a large extent made up by the participants as they go along.

2. The longest precedent for rule without a Parliamentary vote lasted eleven years (1629-40); but in the modern age it is unlikely the government could wait for more than a few weeks.

3. A somewhat analagous situation is the Middle East peace talks held by President Bill Clinton after the 2000 election, but before the inauguration of George W Bush. Clinton was certain to leave office within a few weeks, and there was no guarantee that either Congress or President Bush would support his policy. Nevertheless, at that time Clinton had the authority to negotiate on behalf of the United States.

Answer 2

Yes, because the Conservatives are in the best position to run a government and they are the largest party with the most seats.

is there any sense in which either of these claims is in any way accurate, and/or has any practical consequences for the Brexit talks?

Currently, it's highly likely that the Conservative–DUP pact will be formed and the Tories are in the best position to run a government. Though the UK government is not in an ideal position to negotiate Brexit, it has the political legitimacy since the Conservatives won the most seats, thus they have the right to represent the UK at the Brexit negotiations.

Also, the DUP only supports the minority government legislatively; to allow the Tories to pass essential legislation and laws. If not for the deal, Theresa May's government will remain, just that it will be occasionally defeated in Parliament. (Though the government is not sustainable, it still remains until the PM decides to call for another election, etc.)

"The UK currently has no government."

This is completely inaccurate, the UK already has a minority government formed.

Is there a possibility that the legitimacy of any talks begun tomorrow could be challenged on the basis that the UK representatives had no authority to enter into them at the time?

It's not accurate to describe it as retroactively "authorising" the start of the talks. At the time of the start of Brexit negotiations, the UK government is already formed as a minority government which is a legitimate government. After the agreement with the DUP is formed, the government is still a minority one. It's just that the Conservatives will have enough votes in Parliament and not get defeated often.

Some have mentioned that the government should listen to other parties on the Brexit strategy since the Conservatives do not have a majority.