Braverman tells lawyers to give ‘solutions’ when assessing legal risk of policy

The Attorney General’s office denied reports she is banning lawyers from dismissing ministers’ policies as unlawful.

30 July 2022

The Attorney General will order Government lawyers to give “solutions-based advice” when challenging the legality of ministers’ policies.

Updated guidance to be published shortly will state that when “a substantial legal challenge to a policy is likely, it does not automatically mean the policy cannot be pursued”, a spokesperson for Suella Braverman said.

“The focus should be on how Government lawyers can work with ministers to problem-solve issues”.

It comes in the wake of the dispute over the Government’s controversial policy to deport asylum seekers to Rwanda and growing tensions between ministers and the legal profession.

But the Attorney General’s office denied a report in the Daily Telegraph that said she was banning Government lawyers from dismissing ministers’ policies as unlawful.

Her spokesperson said the new guidance “does not prevent Government lawyers from telling ministers that policies are unlawful.

“It remains crucial for Government lawyers to assess the legal risk and lawfulness of Government policies and advise accordingly.”

The statement sent to the PA news agency continued: “Updates to the Legal Risk Guidance will put more emphasis than previous versions have on the need for Government lawyers to provide solutions-based advice when advising ministers on the risks of their policies…

“While the guidance does not change the risk assessment underpinning the Government’s decision making, it makes it clearer that when, for example, a substantial legal challenge to a policy is likely, it does not automatically mean the policy cannot be pursued.

“It places an emphasis on finding solutions that could be put in place to reduce legal risks and their impact, to help ensure government policy is delivered even when novel or complex, but always within the law.”

Lawyers had lashed out at the reported ban, with one unnamed legal adviser telling the Telegraph it “calls into question our ability to hold the Government to account” and former Attorney General Dominic Grieve calling it an “idiotic” idea.

He said the Government can still go ahead with a policy its lawyers deem unlawful.

“Indeed, this current Government under the present Prime Minister has been rather keen on doing that from time to time,” he told the newspaper.

Prime Minister Boris Johnson has repeatedly hit out at those bringing the legal challenges that effectively grounded the first flight due to carry asylum seekers to Rwanda last month, suggesting they were “abetting” criminal gangs.

A series of legal challenges has created uncertainty over when any further flights to the east African country will be attempted, although Home Secretary Priti Patel has insisted the Government “will not be deterred”.

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