Government lawyers are being told to give ministers clearer warnings about the chances of their policies being challenged in court under new guidance from the Attorney General.
The guidance sets out a new framework for assessing legal risk, including how likely a proposed government decision is to be successfully challenged and what could happen if a challenge is brought.
It emphasises the fact that a policy can be legally risky without necessarily being unlawful.
Lawyers are instructed to consider the strength of arguments on both sides and give ministers a clear assessment of the chances of a challenge succeeding. They must also consider how likely it is that someone will actually bring a legal challenge.
The distinction is important. The guidance says a minister can properly and constitutionally choose to proceed with a policy where there is a “tenable legal argument” supporting it, even if the chances of winning a court challenge are poor.
The guidance uses percentages to help communicate the level of risk. A less than 30% chance of a successful challenge is classed as low risk. Between 30% and 50% is medium, while 50% to 70% and above 70% are both classified as high risk, with the latter meaning the government is significantly more likely to lose if challenged.
But where lawyers conclude there is no tenable legal argument, they must advise that the proposed action is unlawful.
The guidance also puts greater emphasis on finding ways to reduce legal risks before ministers make decisions. Lawyers are expected to work with officials to consider whether policies can be redesigned, whether more evidence is needed or whether changes to delivery or communications could strengthen the legal position.
That means legal advice is not simply about telling ministers whether they can or cannot do something. Lawyers are expected to help find lawful ways of achieving the government’s policy objectives.
The potential consequences of a legal challenge must also be considered. A successful challenge could result in decisions or legislation being quashed and having to be made again. There could also be financial costs, delays, reputational damage and additional pressure on government departments.
Even an unsuccessful challenge can be costly, the guidance warns, potentially consuming significant resources and delaying government work.
Legal risk assessments are not necessarily final. The guidance says they should be reviewed as evidence develops, arguments change and new court decisions affect the law.
Where there are serious concerns about legality or constitutional propriety, or where ministers want to proceed despite advice that there is no tenable legal basis, the issue must be escalated to senior officials and, where appropriate, the Law Officers.
The overall aim is to make legal risks clearer to ministers before they commit to important decisions — and to ensure that uncertainty is not confused with unlawfulness.
Attorney General, Ellie Reeves KC MP, said: ‘A government that delivers for the public needs a state that can move quickly and confidently. This guidance is part of building a more agile state, one where legal advice helps Ministers find lawful ways to get things done.
‘Government lawyers play a vital role in helping Ministers deliver for the public, lawfully and effectively. This guidance is about ensuring that lawyers give Ministers clear, practical advice, not just on whether something is legally risky, but on how that risk can be reduced or managed, so that government can continue to serve the public as best it can.’
The full guidance can be read here.
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