Attorney General provides lawyers with new guidance

The Attorney General, Ellie Reeves KC MP, has today published updated legal risk guidance for government lawyers advising Ministers on the lawfulness of policy and operational decisions. The guidance sets out a clear framework for assessing and communicating legal risk, helping lawyers give Ministers practical, solutions-focused advice on how to achieve their policy objectives within the law.

It emphasises that a decision or policy is only unlawful where no tenable legal argument exists to support it. Where a tenable legal argument does exist, even if the risk of a successful challenge is high, the guidance confirms that it is proper and constitutional for a Minister to proceed, provided they are given a clear and full assessment of the risk involved.

Lawyers are encouraged to adopt a proactive and creative approach to identifying ways of reducing legal risk, including advising on options for wider policy or legislative reform when a particular law poses a significant barrier to a policy aim. The guidance also clarifies that legal risk assessments are not fixed, and should be revisited as facts, evidence, and case law develop. Importantly, it applies equally to the assessment of risk under international law, reflecting the government's overarching duty, set out in the Ministerial Code, to comply with the law, including international law and treaty obligations.

The guidance was created with input from senior government lawyers and is now operational across all departments, replacing guidance from 2024.

Attorney General, Ellie Reeves KC MP, 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"