THE Attorney General and failed Conservative leadership candidate Suella Braverman is facing a backlash from government lawyers after banning them from telling ministers that policies are unlawful.
A former attorney general has described the position as “idiotic”.
Braverman sent guidance to lawyers explaining that they should give a percentage chance of policies being challenged, rather than detailing their legality, the Telegraph has revealed.
Lawyers will state both the likelihood of a challenge and then of winning or losing – with only line managers or legal directors able to sign off on a verdict of a policy being "unlawful".
While lawyers questioned the point of their role following Braverman’s message, government sources have expressed anger after being challenged on the legality of their policies.
A Home Office source told the newspaper: “If we come and say we want something, they come back and say it is unlawful and we think there is a 70% chance of losing.
“They don’t go: ‘Well, there is a 30% chance a judge would find it lawful so we should go for it. There will be some who say it is unlawful because of x, y, z reasons rather than: ‘How can we make a legal argument that it is lawful’?”
Former Tory MP Grieve described the decision as “very strange” given that Boris Johnson is already “rather keen” on pressing on despite the advice of lawyers.
He said: “I can't really work out why this has been done," he said. "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.”
Concerns have been raised over the specific impact when considering international law.
When it comes to obligations in international law – such as on treaties – there may be no arbitration process.
This means Braverman’s move could make it easier for ministers to breach international law.
