New government, new legal risk guidance

With a new prime minister and a new attorney general comes a new version of the government’s guidance on legal risk. This is a document, first introduced in 2015 when I was Treasury Solicitor and head of the Government Legal Department (GLD), designed to give some consistency in the way that government lawyers advise ministers on the risk that a court will find a policy or decision to be unlawful.

What was originally a fairly technical, internal document, developed by officials for officials, has increasingly become part of the political apparatus of government. The latest version of the legal risk guidance was foreshadowed  ⁷ https://assets.publishing.service.gov.uk/media/6a9e6e939a177a1decf97e8b/The_Simplification_and_Agency_of_Government.pdf  in a message to all ministers from the Chancellor of the Exchequer, the First Secretary of State and the Attorney General on “The Simplification and Agency of Government”. The essence of that message was that ministers should be more “bold and ambitious in the decisions we take and the reforms we make”. Consultations on policy are to be reduced to the bare minimum: reporting and consultation requirements are to be “retained only by exception”. Ministers are encouraged to take “higher levels of [legal] risk where [they] feel it is warranted”. And there are to be further limits on the scope for judicial review of major infrastructure projects.

The guidance is now aimed more at ministers than officials

Thus, the legal risk guidance is in truth now treated more as guidance to ministers than to government lawyers or other officials.

The new risk guidance  ⁸ https://assets.publishing.service.gov.uk/media/6aa016c79f95f408139c6436/AGO_Legal_Risk_Guidance_-_8_September_2026.pdf  was issued to the media under embargo – another sign perhaps of its politicisation. The essential elements are unchanged, and I doubt whether it will make much difference to the day-to-day work of government lawyers. They will already see it as their professional job to help ministers achieve their aims in a lawful way, give full and frank advice on any legal risks, and where possible help identify ways of mitigating any such risks, if necessary by re-framing the relevant policy. And I don’t imagine any lawyer thinks it is their job to take the final decision on whether to proceed or whether the risks are “too great”. That is a rightly a decision for ministers. Equally, it is the duty of lawyers to alert ministers if a course would be clearly unlawful and the guidance says that the Law Officers (the Attorney General, Solicitor General and Advocate General for Scotland) should be “informed” in those circumstances.

New legal guidance appears to encourage ministers to take more risks

But there would be no point in issuing revised guidance if the government didn’t want something to change, and it looks as though the intended change is mainly to the approach of ministers (rather than advisers) – to encourage a greater willingness to take risks, including legal risks.

We have seen previous revisions of the guidance. It was Suella Braverman who first took ownership of the document as “the Attorney General’s [rather than GLD] guidance”. Her version was designed to get away from (she said) “a clear trend of lawyers advising negatively” and avoided saying that action should be stopped even in the absence of “respectable” legal arguments to support it.

Lord Hermer’s version under Keir Starmer’s government (which I discussed here) was clearly intended as a corrective to Braverman’s, with much more explicit references to respect for the rule of law, including international law; a recognition that relying on a merely “tenable” argument should be a last resort, and means the government is likely to lose; and an acknowledgement that some things will be clearly unlawful – and that lawyers must say so.

With the latest edition of the guidance the pendulum has swung back – a bit. Although the practical impact on the work of government lawyers may be minimal, the document does say something about the government’s attitude to the law and legal risk.  

Ministers should not think they can safely ignore the law

First, although references to international law remain, they have been diluted from the Hermer version. The new guidance refers to the “overarching duty” in the Ministerial Code “to comply with the law, including international law and treaty obligations” – although Andy Burnham has yet to issue his own version of the Ministerial Code.

Second, the guidance says that it is “proper and constitutional” to make a decision where there is a high likelihood of successful challenge, meaning a more than 70% chance of the government losing. In theory that could be anything up to 99%. As with previous versions, much will depend on whether there is a “tenable” (or “respectable”) argument to support the government’s actions. That is defined as one which “a lawyer representing the government could properly advance… before a court or other tribunal in accordance with their professional obligations”. But it might be a very weak argument which the government knows is very likely to fail.

Third, the new edition attaches particular relevance to whether a challenge will in practice be brought: “a low risk of [a] challenge being brought is an important factor in the Minister’s decision”, which should be included in advice to the minister. The implication here is that ministers might be prepared to take higher risks if the issue is, in practice, unlikely to come to court. Some government decisions are very likely to be challenged whatever way the decision goes – for example big infrastructure projects which have a significantly large impact on the interests of well-funded commercial enterprises to justify even a weak or speculative challenge. In such cases, if ministers were scared simply of being challenged, they would never take any decisions at all. But many government decisions and actions never come anywhere near a court: even if there are potential grounds for a legal challenge, the cost and effort of bringing one may be prohibitive for ordinary citizens.

Taking the second and third points together, the new legal risk guidance suggests it would be “constitutional and proper” for ministers to go ahead with action which is highly likely (say 90%) to be unlawful, but where no court will ever consider the matter (so no-one might every know). I hope ministers don’t take that to mean they can safely ignore the law in such cases.