The Attorney General has warned government lawyers against dismissing policies as unlawful, according to a report.
Last week, Suella Braverman asked lawyers to give a percentage chance that some policies may be challenged instead of rejecting them in full, The Telegraph revealed.
The latest guidance is in the wake of the row over the Rwanda asylum plan.
The newspaper report claimed that policy advisers now believe that lawyers are now blocking the government’s policy agenda instead of pushing it.
However, many lawyers have voiced their concerns over the latest policy, as it is a hindrance to their ability to hold the government to account. Others warned that ministers risked breaching international law and, in turn, the ministerial code.
Dominic Grieve, who served as Attorney General from 2010 to 2014, termed the guidance as ‘idiotic’.
“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 was quoted as saying by Telegraph.
He added: “It seems very strange that the ‘U word’ should be removed, because, ultimately, it’s still up to the government whether it wishes to follow its lawyers’ advice.”
Now, lawyers should state the likelihood of winning or losing. Only a line manager or legal director can sign off an “unlawful” response to a policy.
One government source told The Telegraph: “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’?”
The new advice is more problematic when applied to international law as there may be no arbitration process because of treaty obligations, critics said.