Unlike her predecessor, Lord Hermer KC, the new Attorney General Ellie Reeves KC MP has kept a low profile since becoming the Crown’s first law officer. This is a welcome return to tradition. Her new legal risk guidance, published this week, is another welcome break with the regrettable legacy of Lord Hermer, restoring some measure of balance in this obscure, yet important document.
The new Labour government has abandoned the central parts of Lord Hermer’s guidance
Attorneys General (and before them heads of the Government Legal Department) have been issuing legal risk guidance to government lawyers since at least the 1990s to guide them in the provision of legal advice to ministers. The guidance was first made public in 2015, but became the subject of political controversy in 2022, when then-attorney general Suella Braverman revised them.
When Lord Hermer became Attorney General in 2024, one of his first actions was to issue a completely revamped set of guidelines, part of his stated aim to restore “our reputation as a country that upholds the rule of law at every turn”.
As was pointed out in a Policy Exchange report at the time, Hermer’s guidelines introduced a number of unwelcome and unconstitutional innovations, unbalancing the machinery of state and aggrandising the role of government lawyers in general and attorney general in particular. The guidelines came hard on the heels of the Starmer Government’s bizarre decision not to appeal against declarations of incompatibility made in respect of the Troubles Act 2023 by the High Court in the Dillon litigation because of the government’s “absolute commitment to the Human Rights Act”, and its decision to cede the Chagos Islands to Mauritius, seemingly ignoring the UK’s procedural protections against a binding judgment ever being secured against the UK. The reasoning behind these kinds of decisions can only be fully understood by grasping the serious legal risk aversion at the heart of the Starmer/Hermer vision of politics.
Perhaps the most radical of Hermer’s innovations was the insistence that ministers should only advance a tenable legal argument in court (“tenable” here means a risky legal argument that a lawyer may nevertheless advance in court in line with their professional obligations) in the last resort, and that a tenable legal argument should not be advanced in certain circumstances, such as when fundamental rights are being “significantly undermined”.
In other words, Hermer was instructing government lawyers that they should not advance arguments that were entitled to make as legal professionals, an extraordinary assertion, and by implication ministers could not instruct them to act in such circumstances. Now, of course, ministers can always properly decide that it is better not to advance a legal argument that is more likely to lose than to win in court; but it is certainly not constitutionally improper for them to do so if they consider that this is what the public interest requires.
The new risk guidance, by contrast, makes it clear to the government lawyer that “[w]herever there is at least a tenable legal argument, you should make clear that the decision is one that can properly and constitutionally be taken by the Minister”. Lawyers still have to advise, as is entirely proper, on the strength of contending legal arguments for both sides, but they are no longer told that advancing a tenable argument is something that can only be considered in the last resort, or not at all.
There are also significant changes in the guidelines’ handling of international law, a perennial obsession for both Sir Keir Starmer and Lord Hermer, which is not to say that their understanding of international law was correct; it was not. Whereas Lord Hermer’s guidance mentioned international law a staggering 24 times, Reeves’ version mentions it merely four times. Gone too is the unconstitutional admonition that “the government should not invite Parliament to legislate contrary to” international legal obligations the United Kingdom has entered into, an assertion in conflict with responsible government by suggesting that civil servants under the guidance of the Attorney General, not ministers, had the final say over what could be introduced in Parliament.
In his version of the guidelines, Lord Hermer also stated that “[p]olicies or actions which have little or no chance of being tested before a court and which are assessed as carrying a high risk under international law should be scrutinised very carefully by government lawyers”. This was a curious assertion, since the legal risk guidance is about legal risk, which must include the risk that a policy will be challenged in the courts. That, too, has been excised from Reeves’ version of the guidance.
Lord Hermer’s guidelines were warmly welcomed by many lawyers at the time as an expression of the Labour government’s commitment to the rule of law, by raising legal standards and rejecting the view held by previous Conservative Attorneys General that excessive legal risk aversion was compounding political timidity and ineffective government. Less than two years later the new Labour government has abandoned the central parts of Lord Hermer’s guidance. This suggests to us that many in the government came to the view, as Policy Exchange put it, that Lord Hermer’s vision of the rule of law looked too much like the rule of lawyers.
Yuan Yi Zhu, and Dr Conor Casey, who co-authored this piece, are Senior Fellows at Policy Exchange
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