Government updates legal risk guidance used by government lawyers

In a letter sent to all ministers on ‘the simplification and agency of government’, Chancellor of the Exchequer John Healey, First Secretary of State Louise Haigh, and Attorney General Ellie Reeves KC, suggested that is “vital” to recognise that the law, and the level of legal risk involved in a decision, is “not often black and white”.

They added: “It is for that reason that, so long as there is a tenable legal argument, it is for ministers to determine how to proceed – and it can be right to act where the level of legal risk is considered to be high.”

The ministers noted that the new legal risk guidance will also encourage lawyers “proactively” to suggest alternative options where there is a significant barrier or risk to a proposed policy.

Turning to the issue of consultations, the letter to ministers warned that the way government approaches policy making is “not functioning as well as it could”.

It continued: “Consultation culture has turned a sensible mechanism for sourcing external input into an industry of dither and delay, which too often fails to hear from those whose perspectives are most relevant to the issue under consideration, and can drag policies to a lowest common denominator outcome.”

The ministers said they will end this trend by reasserting that there is no general duty of consultation, and that the default position should be that ministers reach decisions and “proceed to act on them”.

They added that the best approach would be more "participatory policymaking", involving a wider range of people in shaping government thinking earlier and more directly.

The ministers claimed that "habitual, box-ticking consultation does not serve people or business and is a distraction to government".

The letter stated: “Formal consultation should only take place where there is a statutory requirement to consult, where it would be conspicuously unfair not to consult, or where ministers believe there is a good case for seeking external input and that the right vehicle for doing so is a formal consultation.

“Even where departments have historically consulted or previously promised to consult, we expect each individual instance to be considered afresh, thinking about what is fair in the particular circumstances."

The three ministers said they also wanted to see this approach to consultations adopted not just within central government and its agencies, but across the wider public sector.

Lastly, the Government highlighted its intention to progress reforms to limit the number of attempts that can be made to bring a judicial review against nationally significant infrastructure projects, and to broaden the range of projects to which the reforms can apply – from only energy projects to all nationally significant infrastructure projects.

The ministers added: “This will mean that transport, water and other types of major infrastructure can benefit from the parliamentary authorisation route once we have passed the necessary legislation.”

Lottie Winson