The Attorney General has banned government lawyers from telling ministers that their policies are unlawful, 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’?”
‘Idiotic’ idea
Dominic Grieve, who served as Attorney General from 2010 to 2014, described the ban as an “idiotic” idea.
“I can’t really work out why this has been done,” he 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: “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. 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 try to think creatively if a policy does not comply with some legal requirement, can you think of a way that does. Lawyers are very intelligent people but they forget that they can shape police 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.
“LaLaLaLa I cant hear you. I’m so amazing and great and my policies are well thought through and smart and true genius. LaLaLaLa I cant hear you” – Tories.
Seriously how can any tory voter defend this. In what way is this somehow good for the country that a government does not want to hear about legal risks of their policies from actual legal experts.
This is literally the government active like a child and throwing a temper tantrum after being told they are wrong.
Tory ethics in a nutshell – *can we get away with this*
A new low every day
…. So the lying bastards are lying to us.
how to hell can you even express that risk? i thought the law was pretty binary illegal or legal not legalish
This reminds me a lot of risk management in recall policy.
“Don’t tell me it’s dangerous to consumers, tell me how economically viable it is once the risks are quantified.”
Parliament is sovereign and sets the law, the Government is not and must follow the law set by parliament. There are a lot of attempts to fudge the lines between them but the government is not sovereign.
The stupid don’t want to be told how stupid they are.
Chocolate teapots, ashtrays on motorcycles, and now lawyers for the government. 🤪
>instead give a percentage chance that they may be challenged.
“There is a 100% chance this will be challenged and a 100% chance you would lose in court. If this were a civil case, I’d advise you to bring bus fair because 15 minutes after it started, the other guy would be driving your car home.”
There, done.
I am going to rob a bank. Could someone please tell me the percentage chance I will be challenged for breaking the law? /s
Yet another ridiculous action by this absolute joke of a government.
Like, imagine doing such a poor job of making policies that actually follow the laws in place in the country that you have to ban your OWN lawyers from pointing out the fact that these policies aren’t even legal. Can the next GE come already so we can vote these fuckers out?
Good news minister! your proposed legislation is 5% lawful. If you buy me a pint I’ll quietly tell you about the other 95%
When you want to make your government unaccountable for anything, the first thing you do is remove the option for it to be unlawful. That is step 1 to getting a dictatorship.
Lol here’s one reason I took time off my law degree in England, it’s absolutely useless
>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’?”
It’s interesting to see the mindset here.
Lawyers aren’t seen as experts in their field giving advice, but rather as tools to make arguments for the govt get its way.
Clever, as case after case is lost and millions of pounds are spent because ‘lefty lawyers’ are insisting on the rule of law, whose fault will it be that poorly thought out knee jerk legislation is overturned?
A bit of spin from the Tory press and it will be the courts fault the government is fucking useless, not down to unlawful legislation.
Wouldn’t it be simpler for Suella Braverman to just sack all the government lawyers and then bring in agency staff under contract to agree with whatever the politicians propose?
Surprised to see this in the Torygraph.
everyones trying to get the plan stopped but not accually providing a solution. well done you bunch of sheep
She cant say
Pretty obvious to me that this is a plan to pin blame on lawyers when Tory policy gets overturned by the courts.
“Department lawyers never advised us the policy to euthanise the disabled was unlawful, it’s not our fault the courts struck it down”
“But you banned us from telli-“
The minister then points at the lawyer, unhinges their jaw, and screams “LEAKER” at the lawyer until they get bored and leave (or explode like they’ve been called a knobhead by Black Bolt).
She’s a very nasty piece of work in a way that Nadine Dorris isn’t – because Suella Braverman is at least very well educated
The fact is, she knows better, she just chooses fights like these for posturing. Just like she obviously knew the difference between the EU and ECHR.
What an absolute shit show of a country we live in, 3 post already today that have just made me more and more frustrated with this government.
Time to just sit back and watch society collapse I think, who wants some popcorn?
What is the point of them then
What is the percentage likelihood that suella has a brain?
Does this woman wake up in the morning, full of rage and ask herself “How can I be the biggest cunt in the room today?”
Good grief, we might have had this woman running the country.
If its against the law its against the law end of.
So the party of law and order wants to actively suppress any ~~indication~~ record that they have been told that they may be breaking the law.
Well that seems entirely like the sort of legitimate thing a totally upstanding legitimate bunch of legitimate people would do.
Good Law Project wringing their hands with glee at this. Great way to get curb stomped in court.
39 comments
The Attorney General has banned government lawyers from telling ministers that their policies are unlawful, 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’?”
‘Idiotic’ idea
Dominic Grieve, who served as Attorney General from 2010 to 2014, described the ban as an “idiotic” idea.
“I can’t really work out why this has been done,” he 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: “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. 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 try to think creatively if a policy does not comply with some legal requirement, can you think of a way that does. Lawyers are very intelligent people but they forget that they can shape police 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.
“LaLaLaLa I cant hear you. I’m so amazing and great and my policies are well thought through and smart and true genius. LaLaLaLa I cant hear you” – Tories.
Seriously how can any tory voter defend this. In what way is this somehow good for the country that a government does not want to hear about legal risks of their policies from actual legal experts.
This is literally the government active like a child and throwing a temper tantrum after being told they are wrong.
Tory ethics in a nutshell – *can we get away with this*
A new low every day
…. So the lying bastards are lying to us.
how to hell can you even express that risk? i thought the law was pretty binary illegal or legal not legalish
This reminds me a lot of risk management in recall policy.
“Don’t tell me it’s dangerous to consumers, tell me how economically viable it is once the risks are quantified.”
Parliament is sovereign and sets the law, the Government is not and must follow the law set by parliament. There are a lot of attempts to fudge the lines between them but the government is not sovereign.
The stupid don’t want to be told how stupid they are.
Chocolate teapots, ashtrays on motorcycles, and now lawyers for the government. 🤪
>instead give a percentage chance that they may be challenged.
“There is a 100% chance this will be challenged and a 100% chance you would lose in court. If this were a civil case, I’d advise you to bring bus fair because 15 minutes after it started, the other guy would be driving your car home.”
There, done.
I am going to rob a bank. Could someone please tell me the percentage chance I will be challenged for breaking the law? /s
Yet another ridiculous action by this absolute joke of a government.
Like, imagine doing such a poor job of making policies that actually follow the laws in place in the country that you have to ban your OWN lawyers from pointing out the fact that these policies aren’t even legal. Can the next GE come already so we can vote these fuckers out?
Good news minister! your proposed legislation is 5% lawful. If you buy me a pint I’ll quietly tell you about the other 95%
When you want to make your government unaccountable for anything, the first thing you do is remove the option for it to be unlawful. That is step 1 to getting a dictatorship.
Lol here’s one reason I took time off my law degree in England, it’s absolutely useless
>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’?”
It’s interesting to see the mindset here.
Lawyers aren’t seen as experts in their field giving advice, but rather as tools to make arguments for the govt get its way.
Clever, as case after case is lost and millions of pounds are spent because ‘lefty lawyers’ are insisting on the rule of law, whose fault will it be that poorly thought out knee jerk legislation is overturned?
A bit of spin from the Tory press and it will be the courts fault the government is fucking useless, not down to unlawful legislation.
Wouldn’t it be simpler for Suella Braverman to just sack all the government lawyers and then bring in agency staff under contract to agree with whatever the politicians propose?
Surprised to see this in the Torygraph.
everyones trying to get the plan stopped but not accually providing a solution. well done you bunch of sheep
She cant say
Pretty obvious to me that this is a plan to pin blame on lawyers when Tory policy gets overturned by the courts.
“Department lawyers never advised us the policy to euthanise the disabled was unlawful, it’s not our fault the courts struck it down”
“But you banned us from telli-“
The minister then points at the lawyer, unhinges their jaw, and screams “LEAKER” at the lawyer until they get bored and leave (or explode like they’ve been called a knobhead by Black Bolt).
She’s a very nasty piece of work in a way that Nadine Dorris isn’t – because Suella Braverman is at least very well educated
The fact is, she knows better, she just chooses fights like these for posturing. Just like she obviously knew the difference between the EU and ECHR.
What an absolute shit show of a country we live in, 3 post already today that have just made me more and more frustrated with this government.
Time to just sit back and watch society collapse I think, who wants some popcorn?
What is the point of them then
What is the percentage likelihood that suella has a brain?
Does this woman wake up in the morning, full of rage and ask herself “How can I be the biggest cunt in the room today?”
Good grief, we might have had this woman running the country.
If its against the law its against the law end of.
So the party of law and order wants to actively suppress any ~~indication~~ record that they have been told that they may be breaking the law.
Well that seems entirely like the sort of legitimate thing a totally upstanding legitimate bunch of legitimate people would do.
Good Law Project wringing their hands with glee at this. Great way to get curb stomped in court.
https://twitter.com/jolyonmaugham/status/1553082939847606275
Er. So she’s looking forward to losing case after case in the courts? How tarded is she?
Isn’t that corruption?
As I consider myself to be a tolerant man I have difficulty deciding whether she is stupid or malignent.
Coming soon:
>Bar Standards Board bans Suella Braverman from…everything
Did this woman ever actually stand in front of a Judge and argue a case? I find it incredible that she’s a barrister.
>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’?”
Lol, if there’s a legal argument that it is lawful, then it wouldn’t be unlawful because of x, y, z reasons.
Curtailing your lawyers and creating a culture of fear won’t stop your policies from being unlawful regardless. Doesn’t change anything.
Will Lawyers in question comply?
Suella is toast