What does the new legal risk guidance for government lawyers mean?

The Attorney General, Lord Hermer KC, has issued revised guidance  ⁴ https://assets.publishing.service.gov.uk/media/672b7189abb279b2de1e8c59/AG_s_Legal_Risk_Guidance_2024.pdf  to government lawyers on legal risk. This may sound obscure or technical. But it is in fact an important statement about the government’s approach to the rule of law, and affects the work of thousands of lawyers giving legal advice to government. So what is the purpose of the guidance?

The legal risk guidance was first developed around 2015 when I was Treasury Solicitor and head of the Government Legal Department (GLD). It was formulated by government lawyers themselves, for two main reasons.  First it was intended to help address the perennial perception that lawyers were “risk averse”, along with the tendency to blame legal advice as a reason for not proceeding with policies.

Most legal questions, apart from the most straightforward, are not black and white. There will typically be an element of risk or doubt. A point may be novel, there may be no (or conflicting) previous court decisions on it, lawyers may disagree on the correct analysis. It is the job of lawyers to give their best, honest professional assessment of the legal risks to a particular policy or decision, and in particular the risk that a court challenge to it would succeed. If the policy or decision is still at the stage of formulation, lawyers can also help to identify ways of reducing the risk.

If a particular course would clearly be illegal, it is the lawyer’s job to say so. But where a point is risky and arguable either way, it is ultimately for the client (in the government’s case, usually the minister), not the legal adviser, to decide whether to proceed. For that the client needs full, dispassionate legal advice. No lawyer does their client any favours by saying “it will be fine” if in fact there is a serious legal obstacle which will lead to successful challenge in court.

The second purpose of the guidance was to bring some consistency in the way that legal risk is described and conveyed to clients. All kinds of formulation get used: is “a reasonable case” better than a “strongly arguable” one? Does a “high risk of challenge” mean that a challenge would actually succeed? Is that better or worse than “50/50 chances of success”? So the risk guidance includes some standard language around “low”, “medium” and “high” risks, with accompanying narratives and indicative percentages.

The guidance was welcomed by ministers, including the then prime minister, David Cameron, and successive attorneys general. It became widely embedded in Whitehall and also came to be used by panel counsel and other external lawyers advising government. I often find it being referred to, at least by analogy, by private sector lawyers.

Suella Braverman made changes to the risk guidance

When Suella Braverman became Attorney General she decided to review and amend the risk guidance. At that stage it became “the Attorney General’s” (rather than GLD’s) guidance. She said the revisions were designed to get away from the “computer says no” approach, where “government lawyers are too cautious in their advice [which] has hampered ministerial policy objectives needlessly” and there had been “a clear trend of lawyers advising negatively”.

Braverman’s version emphasised the role of lawyers in providing constructive solutions (nothing wrong with that) but downplayed the idea that some proposals might be too risky or actually unlawful. Even where there were “no respectable arguments” for a policy, the guidance did not suggest that it should be stopped, merely that it should be “escalated” to senior lawyers and the Attorney General.

This was at a time when the Conservative government was criticising lawyers more generally for undermining government policy, for being “activist” or “woke”, just for doing their jobs. Although ministers might have said that rhetoric was not aimed at its own lawyers, many government lawyers (members of the same professional organisations as their private sector colleagues and subject to the same professional obligations) will have been uncomfortable with it.

Lord Hermer’s version is intended to reverse Braverman’s changes

Lord Hermer’s version of the guidance is clearly intended to reverse and redress the changes made by Suella Braverman. It was foreshadowed in his recent Bingham lecture, where he signalled a new approach to upholding the rule of law. The new guidance begins by affirming the government’s obligation to “comply with legal obligations arising under domestic and international law”. It is no coincidence that the guidance was published on the same day as Keir Starmer’s revised Ministerial Code, which restores the reference (dropped by David Cameron) to ministers’ overarching duty to comply with the law “including international law and treaty obligations”.

The new guidance is much more explicit than the Braverman version that relying on a merely “tenable” argument should be a last resort, and means the government is likely to lose. It also expressly recognises that sometimes a proposed activity or policy will simply be unlawful, and that lawyers “must advise” that a course is unlawful if that is their professional assessment.

Of course any lawyer can be wrong, and there will no doubt be disagreements in novel or complex cases. But overall the tenor of the revised guidance is to signal support from the Attorney General to government lawyers in giving their honest advice, even if that means exposing a high risk of successful challenge or indeed advising that a course is clearly unlawful. That is a world away from treating lawyers as risk-averse blockers, whose advice is to be viewed with suspicion or even ignored if it is considered to be “inconvenient”.