The Attorney General, 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 makes clear 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.
The guidance asks lawyers to take a proactive and creative
approach to identify ways of reducing legal risk, including by
advising on options for wider policy or legislative reform where
a particular law is a significant barrier to a policy aim. It
also confirms that legal risk assessments are not fixed, and
should be revisited as facts, evidence and case law develop.
The guidance 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 developed with senior government lawyers and is
now in operation across all departments, replacing previous 2024
guidance.
Attorney General, 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.
Notes to editors
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This guidance replaces the Attorney General's Legal Risk
Guidance issued in 2024.
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It applies to lawyers and other officials advising Ministers
and decision-makers across government on lawfulness and legal
risk in domestic and international law.
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It sets out an escalation framework requiring consultation
with the Law Officers, via line managers and Legal Directors,
in specified circumstances, including where there are
concerns about legality or constitutional propriety,
disagreement between departments, or significant and
sensitive policy implications, consistent with the Cabinet
Manual.
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The full guidance is available at: Guidance: Attorney
General's Guidance on Legal Risk - GOV.UK
