The House of Lords Constitutional Committee has expressed concern about the concept of a “good legal argument” described in the Government Legal Department’s Guidance to Government Lawyers on Legal Risks.
Published following a Freedom of Information Request published in 2018 and updated in August 2022, the GLD Guidance expands the need for attorneys to “provide solutions to legal impediments.”
In the report Judicial officer and the role of the judicial officerthe committee warned that the guidance’s “admirable legal arguments” “could represent a very low threshold for approving legally uncertain actions.”
A colleague added: “While it may be conceptually correct that an action is not ‘illegal’ until verified by a court, or if legal justification cannot be found, acting on such uncertain grounds It is a questionable practice and contrary to the rule of law.”
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The 2015 GLD Guidance states that risks should be considered for:
- Potential Legal Objections
- the likelihood that the challenge will be successful; and
- The impacts and consequences of the challenge, whether successful or not, including possible mitigations to mitigate risks and impacts.
The Committee noted that the Guidance sets out a “traffic light” system with a percentage indicating the risk of each bullet point, and noted that “Ministers should not accept proposals even if they entail high risks.” We can legally decide to proceed.” Risk (over 70%)” and “If you do not have a good legal argument that can be brought to court, you should be notified that the proposed action is illegal.
“This is likely to be very exceptional and if you are in the area you should report the matter to your line manager and legal director before advising (a respectable legal argument would be It’s a credible argument that the government can properly make in court.”
An updated version of the guidance was published on August 2, 2022. The report notes that the guidance does not bar government lawyers from advising a course of action as unlawful, but it expands the need for lawyers to “provide solutions.” increase. to legal impediment.”
In a series of tweets, then-Attorney General Suera Braverman detailed that government lawyers were “too cautious in their advice and this unnecessarily hinders the policy goals of ministers.”
Braverman said the change moves away from a “‘computer says no’ approach”, encourages a “solution-based approach and the use of innovative legal thinking”, and promotes a “‘private sector’ approach to client service. It is intended to infiltrate the
The Constitutional Commission also stated in its observations on the criteria for “admirable legal arguments”: legally inconvenient. ”
The Commission said that an alternative framework for assessing legal risk would be so in light of “the necessary degree of confidence, as recently demonstrated in the barrister’s reference to the Supreme Court on the Scottish Independence Referendum Bill”. I have outlined the idea that it may be possible to
The report said that the validity of the “admirable legal argument” threshold itself depends on the uncertain threshold of the Attorney General’s guidance.
“While the guidance explains that this is an argument that can be properly submitted to court, this may be a subjective judgment. It also mentions that does not exist. It is unclear whether this suggests that the threshold is so low that it will most likely be found controversial, or whether the government does not expect frequent legal considerations. suspicious behavior.
“Although the threshold of ‘admirable legal argument’ may be justified in situations of genuine legal Public confidence in the government’s commitment to the rule of law should ensure that any standard is meaningful and consistent with a genuine desire to abide by the law. demand.”
Other key points found in the report were based on the Prime Minister’s role.
The commission said the prime minister must play a broader cross-sectoral role in defending the rule of law and educating colleagues on its importance. There is already a statutory duty, and unlike the Attorney General, the Attorney General is a full member of the Cabinet.”
The report said that a central part of the Chancellor’s role is to protect the judiciary from “wrongful, personal or threatening abuse,” and while criticism of the content of the judgment is acceptable, “the judge’s It is not intended to unfairly denounce the impartiality of the judiciary or to provoke public opinion against the judiciary.
In these cases, the prime minister must intervene “promptly and publicly,” the commission said.
Baroness Drake, Chairman of the Constitutional Commission, said:
“In a world where authoritarianism and populism have challenged the rules-based world order in which democracy is sacred, the protection of the rule of law in Britain, and in its interaction with the world, is more important than ever. has become important to
“Thus, it is essential to have legal officers who are willing and able to stand up to their Cabinet colleagues and the Prime Minister when necessary, and who have the autonomy and strength of character to provide unbiased legal advice to the government. This will help ensure that the UK continues to comply with the rule of law, including its international obligations.
“The rule of law is critical to the health of our democracy. We urge governments to renew and strengthen their commitment to this fundamental tenet of the Constitution.”
Lottie Winson
