Suella Braverman challenges 'overcautious' lawyers
The Attorney General has told government lawyers to stop rejecting policies as unlawful without advising on the chances of success, The Telegraph can reveal.
In the wake of the row over the Rwanda asylum plan, guidance was sent from Suella Braverman to lawyers last week stating that they should refrain from dismissing policies as unlawful and instead give a percentage chance that they may be challenged.
It is the culmination of more than a year of growing tensions, with policy advisers viewing lawyers as overly cautious. They perceive them to be getting in the way of the Government’s policy agenda instead of thinking creatively to push through ideas.
Lawyers, who are now describing it as the “U-word”, have hit back at the policy, describing it as an affront. "It calls into question our ability to hold the Government to account. What exactly is our role now?" one said. Others warned that ministers risked breaching international law and, in turn, the ministerial code.
The issue has come to a head at the Home Office. One government source said: “If we come and say we want something, they [lawyers] come back and say it is unlawful and we think there is a 70 per cent chance of losing. They don’t go: ‘Well, there is a 30 per cent 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’?”
Dominic Grieve, who served as Attorney General from 2010 to 2014, 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."
He added: "Ultimately, it's still up to the Government whether it wishes to follow its lawyers’ advice. It can decide to go ahead with something which they deem to be unlawful. Indeed, this current government under the present Prime Minister has been rather keen on doing that from time to time."
Under the new guidance, lawyers will be asked to avoid binary answers and instead state the likelihood of a challenge. They must then state the likelihood of winning or losing. Only a line manager or legal director can sign off an “unlawful” response to a policy. Insiders said the policy gave ministers grounds to pursue what they consider to be unlawful policies because nothing would ever be deemed 100 per cent unlawful unless it had already been tested in the courts.
Much of this is already expected of government lawyers. However, government sources said that some had fallen into “bad habits’ in recent years.
They said the focus was “to think creatively and be more nuanced: 'If a policy doesn't comply with some legal requirement, can you think of a way that improves its chances.' Lawyers are very intelligent people but they forget they can shape policy outcomes if they are involved early.”
However, critics pointed out that the policy was even more problematic when applied to international law because, as in the case of treaty obligations, there may be no arbitration process and policies are unlikely to be challenged in the courts. They said this risked both reputational damage for the UK and a breach of the ministerial code, which makes clear that ministers must observe international law.
