What is the Attorney General’s Legal Risk Guidance?
The Government Legal Department is the primary source legal advice to the government and the Attorney General's Legal Risk Guidance is the framework used to ensure that there is a consistent approach to evaluating and presenting potential risks.It is therefore a core document for all lawyers advising Ministers and Senior Civil Servants.
Why is the Attorney General’s Legal Risk Guidance being updated?
The Attorney General, Lord Hermer KC, announced at the Bingham Lecture in October that he planned to issue amended guidance for assessing legal risk across government which would seek to “raise the standards for calibrating legality”, as well as help government lawyers to feel “empowered to give their full and frank advice” and “stand up for the rule of law”.
The new guidance updates the previous version which was launched in 2022 by the then Attorney General, Suella Braverman, publishing a series of tweets which claimed that “Government lawyers are too cautious in their advice and this has hampered ministerial policy objectives needlessly" and there was a need to introduce more “innovative legal thinking".
There is a clear change in tone from the previous version of the guidance published by Suella Braverman, with lawyers being encouraged to be more candid about potential issues and to identify when there is no tenable legal argument that could be put to a court.
What are the key changes to the Attorney General's Legal Risk Guidance?
Focus on the rule of law
Given that the rule of law is a defining feature of constitutional democracies and a fundamental principle within British democracy, it is perhaps surprising that a commitment to the rule of law did not feature more prominently in the previous version of the guidance. This is rectified in the Attorney General's latest Legal Risk Guidance which states in the first paragraph that:
"A central element of the rule of law is that everyone – including the government – is subject to the law. As such, the government is required to comply with legal obligations arising under domestic and international law. This is affirmed in the Ministerial Code which refers to “the overarching duty on Ministers to comply with the law”, including international law".
The guidance also recognises the role lawyers advising the government play in ensuring the rule of law, by "helping Ministers meet their overarching obligation while delivering their policy objectives". In doing so, it is noting that "The Civil Service Code recognises officials’ obligation to act with integrity, honesty, objectivity and impartiality and lawyers owe additional duties arising from their professional obligations." Therefore lawyers should act within their duties, contributing to the decision making process by providing accurate and informed information around potential legal risks and solutions.
When must lawyers advise on a course of action being unlawful?
The guidance explicitly states that "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".
How should lawyers advising government consider legal risk?
A central part of the guidance is the risk matrix, which sets out the questions around risk and the categorisation of risk. The latest risk matrix is produced below:
The focus is no longer on the strength of the arguments, but evaluating whether they are good and in particular, whether a course of action is unlawful.
Full and frank advice
The guidance states that "It is important that the government should receive full merits legal advice, wherever practicable, namely, advice assessing the strength of the legal arguments for and against the lawfulness of the policy/decision, not just advice focused on whether a tenable legal argument is available. In doing so, lawyers should use this guidance to advise on the level of legal risk, and also give their full and frank advice on the better approach in legal terms (including possible mitigations) and the likelihood and impact of challenge, recognising that decisions are for Ministers, dependent on their risk appetite".
Therefore lawyers are expected to be candid on risk, but also to understand that ultimately "decisions are for Ministers, dependent on their risk appetite".
A commitment to international law
The guidance is expressly stated to apply "in equal force to assessing risk in the context of international law. The UK, like other States, has obligations which are binding in international law".
The guidance goes on to state that "to honour the UK’s international obligations, the government should not invite Parliament to legislate contrary to those international obligations" which appears to be a reference to a situation which arose in September 2020, when Brandon Lewis, the then Northern Ireland Secretary stated in the House of Commons that proposed Northern Ireland customs rules legislation would “break international law in a very specific and limited way”.
The importance of using the Attorney General’s Legal Risk Guidance
Jonathan Branton, Head of DWF's Government & Public Sector team, said "An accurate understanding of the risks and opportunities is at the heart of good decision making, therefore the focus on full and frank discussion within the new Attorney General’s Legal Risk Guidance is to be welcomed, as is the greater emphasis on the role which advisers can play in ensuring the rule of law is followed".
DWF advises advises all levels of government on important decisions, including how to deliver major projects within the law, the administration of grant funding programmes and issues around decision making. If we can be of assistance, please do not hesitate to get in touch with Alexander Rose.
