Attorney General to issue amended guidance for government lawyers on legal risk
The Attorney General, Lord Hermer KC, has announced he is to issue amended guidance for assessing legal risk across government that will seek to “raise the standards for calibrating legality”.
He said he wants government lawyers to feel “empowered to give their full and frank advice” to him and others in government, and to “stand up for the rule of law”.
Delivering the 2024 Bingham Lecture on Monday (14 October 2024), the Attorney General covered three key themes: rebuilding the UK’s international rule of law leadership, defending and strengthening Parliament’s role in upholding the rule of law, and promoting a rule of law culture, which “builds public trust in the law and its institutions”.
He said: “We need to explain that the rule of law is not the preserve of arid constitutional theory. […] We need to explain how it provides the stable and predictable environment in which people can plan their lives, do business and get ahead; in which businesses can invest, the economy can grow; people can resolve disputes fairly and peacefully, and express and enjoy their basic rights and freedoms.
“We must illustrate how systems that do not hold to these values can be arbitrary and capricious. And backsliding from Rule of Law values, once it begins, can take an unpredictable course.”
In 2022, the then Attorney General, Suella Braverman, introduced guidance calling on government lawyers to adopt a “private-sector approach” to client service and use “innovative legal thinking".
Braverman’s comments on Twitter came after the Daily Telegraph issued a correction to an article which claimed that government lawyers had been banned from telling ministers that policies were unlawful.
In the correction the newspaper said the guidance to lawyers was that they should advise on the percentage chance of success.
In a series of tweets Braverman said: “Government lawyers are too cautious in their advice and this has hampered ministerial policy objectives needlessly.
“[…] Moving away from the ‘computer says no’ approach, I put in place new Legal Risk Guidance for government lawyers on how to support ministers better, adopt a solutions-based approach and use innovative legal thinking.”
Lottie Winson
