Government lawyers have been given fresh guidance on advising ministers about lawful decision-making following the chancellor of the exchequer’s declaration that legal risk should not be the ‘be-all and end-all’ of ministerial decisions.
Setting out his plan to ‘drive growth in every postcode’ yesterday, chancellor of the exchequer John Healey said he would end a ‘consultation culture at the treasury and beyond’, supported by new guidance from the attorney general that ‘legal risk is not the be-all and end-all of ministerial decisions’.
That guidance was published by attorney general Ellie Reeves today. Reeves 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 latest iteration comes only two years after Reeves’ predecessor, Lord Hermer (Richard Hermer KC), updated the guidance to ‘raise the standards for calibrating legality’ and empower government lawyers to provide ‘full and frank advice… to stand up for the rule of law’.
Notable changes include removal of the phrase 'rule of law', which featured twice in the previous version.
The previous version also stated: '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.'
The latest version reads: 'Not all decisions involve significant legal risk, but where they do, it is important that the government should receive full merits legal advice wherever practicable. Such advice should assess the strength of the legal arguments for and against the lawfulness of the policy/decision, not just focus on whether a tenable legal argument is available. In doing so, lawyers should use this guidance to give their full and frank advice (including possible mitigations or reforms), recognising that decisions are for ministers.'
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