Attorney General issues amended guidance for government lawyers on legal risk
The Attorney General, Lord Hermer KC, has issued amended guidance for assessing legal risk across government, which confirms the government's commitment to comply with legal obligations arising under domestic and international law.
The guidance defines ‘legal risk’ as the risk that a decision or act is unlawful under domestic or international law, and notes that the “principal factor” for legal risk is the likelihood of a legal challenge being successful (assuming one were brought).
It notes: “You must advise that a proposed course of action is unlawful if you assess that if the action was legally challenged, there is no tenable legal argument that could be put to a court.
“A legal argument is tenable if a lawyer representing the government could properly advance that argument before a court or other tribunal in accordance with their professional obligations.”
The Attorney General clarified that the guidance applies in “equal force” to assessing risk in the context of international law.
The amended guidance states: “The UK, like other States, has obligations which are binding in international law. The Ministerial Code recognises the “overarching duty” on Ministers to “comply with the law”, which has been confirmed by successive governments as including international law.
“[…] To honour the UK’s international obligations, the government should not invite Parliament to legislate contrary to those international obligations.”
The guidance notes that the “impact and consequences” of legal risks should also be included in advice to Ministers, stating:
“You will need to identify and explain the potential remedies if a challenge were to succeed and work closely with policy or operational colleagues when assessing impacts and broader consequences of any legal risks you identify.
“A successful legal challenge may, for example, result in financial penalties, quashing of decisions or legislation, requiring them to be remade.
“It may also result in reputational damage, regulatory confusion and enforcement gaps, criticism by an oversight body and/or departmental resource implications.”
On reducing legal risk, the guidance notes that a mitigation strategy is important to achieving solutions which remove or drive down risk for Ministers while advancing their aims.
It says: “Part of a lawyer’s role […] is to suggest and test measures designed to avoid or reduce legal risk. This will mean working with officials to adapt proposals in ways that achieve the desired outcome, by building in additional or different elements to policy design, delivery or communications to reduce the risks identified or conducting further analysis to refine the justification or improve the evidence base or other courses of action.”
In 2022, the then Attorney General, Suella Braverman, introduced guidance calling on government lawyers to adopt a “private-sector approach” to client service and use “innovative legal thinking".
In a series of tweets Braverman said: “Government lawyers are too cautious in their advice and this has hampered ministerial policy objectives needlessly.
“[…] Moving away from the ‘computer says no’ approach, I put in place new Legal Risk Guidance for government lawyers on how to support ministers better, adopt a solutions-based approach and use innovative legal thinking.”
Delivering the 2024 Bingham Lecture ahead of the publication of the amended guidance last month, Lord Hermer KC said he instead wants government lawyers to feel “empowered to give their full and frank advice” to him and others in government, and to “stand up for the rule of law”.
He noted that the amended guidance for assessing legal risk across government would seek to “raise the standards for calibrating legality”.
Lottie Winson
