The Attorney General is to direct prosecutors to provide “solution-based advice” when assessing the legal risk of policies in updated guidance.
Suella Braverman’s office said the recommendations, which come amid a row over the government’s highly controversial policy on deporting asylum-seekers to Rwanda, mean that when “a significant legal challenge to a policy is likely, it does not automatically mean that the policy cannot be pursued”.
Instead, the focus should be “how government lawyers can work with ministers to solve problems,” a spokesman said.
The announcement of changes to the government’s legal risk guidelines, which would be published “soon” on Saturday, came after the Telegraph reported that the attorney general had told government lawyers to stop dismissing guidelines as unlawful without to give an evaluation of their chances of success.
The Attorney General’s Office dismissed the claim, saying: “Nothing in the updated guidance prevents government lawyers from telling ministers that guidance is unlawful.”
But the Telegraph reported that lawyers were now dubbing it the “U word” and hit back at the policy.
“This calls into question our ability to hold the government accountable,” a lawyer told the newspaper. “What exactly is our role now?” Others warned that it could violate international law and thus the Ministerial Code.
Emily Thornberry, Labour’s shadow attorney-general, accused the Conservatives of being “a bunch of third-rate ministers acting like medieval monarchs”.
“They still think the rules the rest of us have to follow don’t apply to them, so much so that they’ve now forbidden officials from even hinting at when their suggestions would break the law,” she said in a statement.
Dominic Grieve, a former Tory MP and Attorney General between 2010 and 2014, said the alleged ban was an “idiotic” idea.
“I can’t really understand why that was done,” he told the newspaper. “Of course, it is always the duty of prosecutors – when confronted with a problem and asked whether something can be successfully challenged – to give the best advice based on their understanding of the law. But if they think something is illegal because of precedent and its nature, they should be able to say so.”
Gina Miller, the transparency activist and leader of the True and Fair party, said her late father Doodnauth Singh, who was Guyana’s attorney general, was “turning in his grave”.
“I was fortunate to grow up on the knees of a great man, a great lawyer and a great attorney general,” she tweeted. “My father will be turning in his grave over it!”
A spokesman for the Attorney General’s Office said: “Nothing in the updated guidance prevents government prosecutors from telling ministers that policies are unlawful, or restricts the important work of government prosecutors assessing the risk of legal challenge. It remains crucial for government attorneys to assess the legal risk and legality of government policies and advise accordingly.”
The spokesman added: “The latest version of the guidance makes it clear that the focus should be on how government lawyers can work with ministers to resolve issues and advise on how policies can be legally robust in their implementation.
“While the guidance does not change the risk assessment that underpins government decision-making, it makes it clearer that if, for example, a significant legal challenge to a policy is likely, that does not automatically mean the policy cannot be pursued. It focuses on finding solutions that could be used to reduce legal risks and their impact, to ensure that government policies, even when novel or complex, are implemented but always within the law.”