Government lawyers are “too cautious” when assessing the legal risk of policies and need to focus more on finding solutions rather than barriers, the attorney general has said.
The Attorney General’s Office will publish updated legal risk guidance for Government Legal Department lawyers to make it clearer that a substantial legal challenge to a policy being likely is not automatically an obstacle to a policy being pursued.
Government lawyers will instead be encouraged to “provide solutions-based advice when advising ministers on the risks of their policies”.
The current guidance already lawyers they should tell ministers the percentage chance that a policy will be challenged and that a challenge will be successful, and only to advise ministers that a police y is unlawful in “highly exceptional” cases.
Government has been taken to court several times in recent years over procurement during the Covid pandemic, while the lawfulness of the controversial Rwanda scheme is among several battles between the Home Office and campaigners.
The updated guidance will not ban GLD lawyers from saying policies are unlawful, as a Telegraph article had claimed on Friday. The newspaper issuing a correction yesterday.
“No, I haven’t banned government lawyers from doing anything,” attorney general Suella Braverman tweeted on Monday.
“Instead, I instigated the first major review of the quality of government legal advice. The conclusions were overwhelming: government lawyers are too cautious in their advice and this has hampered ministerial policy objectives needlessly.
“Whilst the government wins the majority of its cases in court, there is a clear trend of lawyers advising negatively, only to be proven wrong in court.”
Braverman said the new guidance aims to move away from a “computer says no” approach to a solutions-based approach where innovative legal thinking is used to problem-solve issues.
“My aim has been to instill a ‘private-sector’ approach to client service similar to what I’ve seen in the top law firms,” she added.
Sir Jonathan Jones, former head of the GLD, said he does not "recognise" claims of a “computer says no” culture, calling this assertion "pretty offensive".
"The whole point of the existing, well-established guidance is that govt lawyers don’t get to say “no”, except in the rare case where something is clearly unlawful – even then the AG can overrule," he said.
The current guidance says: “If there is no respectable legal argument that we could put to the court, then you will need to advise that the proposed action is unlawful.
“This is likely to be highly exceptional and if you are in this territory you should refer the matter to your line manager and legal director before you advise.”
It describes a respectable legal argument as a “credible argument the government could properly run in court”.
Jonees said he had also not seen evidence that government lawyers are too cautious and that this was not his experience during his time in the civil service.
"Rather they advise on the percentage risk of a successful challenge. Even if the advice is that the risk is very high, ministers can still decide to go ahead. And yes sometimes they will win despite the pessimistic advice (the law’s like that). But that’s all within the existing guidance," he tweeted.
Jones said the comments from Braverman "must be rather demoralising for government lawyers".
A spokesman for the AGO said the new guidance would "help ensure government policy is delivered even when novel or complex, but always within the law”.
"It remains crucial for government lawyers to assess the legal risk and lawfulness of government policies and advise accordingly," they added.