The attorney general is to order government lawyers to provide “solutions-based advice” when assessing the legal risk of policies in updated guidance.
Suella Braverman’s office said the recommendations, which come amid a row over the government’s highly controversial policy to deport asylum seekers to Rwanda, would mean that when “a substantial legal challenge to a policy is likely, it does not automatically mean the policy cannot be pursued”.
Instead, the focus should be on “how government lawyers can work with ministers to problem-solve issues”, a spokesperson said.
The announcement to the changes to the government’s legal risk guidance, which it said on Saturday would be published “shortly”, came after the Telegraph reported that the attorney general had told government lawyers to stop rejecting policies as unlawful without providing an assessment of their chances of success.
The attorney general’s office denied the claim, saying: “Nothing in the refreshed guidance prevents government lawyers from telling ministers that policies are unlawful.”
But the Telegraph reported that lawyers were now referring to it as the “U-word” and hit back at the policy.
“It calls into question our ability to hold the government to account,” one lawyer told the newspaper. “What exactly is our role now?” Others warned that it could breach international law and as a result the ministerial code.
Emily Thornberry, Labour’s shadow attorney general, accused the Conservatives of being “a bunch of third-rate ministers acting like medieval monarchs”.
“They still think that the rules the rest of us have to follow do not apply to them, so much so they have now banned civil servants from even pointing out when their proposals would break the law,” she said in a statement.
Dominic Grieve, a former Tory MP and attorney general between 2010 and 2014, said the alleged ban was an “idiotic” idea.
“I can’t really work out why this has been done,” he told the newspaper. “Clearly, the duty of government lawyers is always – if they’re confronted with a problem, and asked whether something is likely to be successfully challenged – to give their best advice based on their understanding of the law. But if they consider that something on the basis of precedent and its nature is unlawful, they should be in a position to be able to say so.”
Gina Miller, the transparency campaigner and leader of the True and Fair party, said her late father, Doodnauth Singh, who was attorney general of Guyana, would be “turning in his grave”.
“I was lucky enough to grow up at the knees of a great man, a great lawyer and great attorney general,” she tweeted. “My dad will be turning in his grave at this!”
A spokesperson for the attorney general’s office said: “Nothing in the refreshed guidance prevents government lawyers from telling ministers that policies are unlawful or restricts the important work of government lawyers giving assessments of the risk of legal challenge. It remains crucial for government lawyers to assess the legal risk and lawfulness of government policies and advise accordingly.”
The spokesperson added: “The latest version of the guidance makes clear that the focus should be on how government lawyers can work with ministers to problem-solve issues and advise on how policy can be legally robust in its delivery.
“While the guidance does not change the risk assessment underpinning the government’s decision making, it makes it clearer that when, for example, a substantial legal challenge to a policy is likely, it does not automatically mean the policy cannot be pursued. It places an emphasis on finding solutions that could be put in place to reduce legal risks and their impact, to help ensure government policy is delivered even when novel or complex, but always within the law.”
