Peers express concern at ‘respectable legal argument’ threshold guidance for government lawyers on legal risk

The House of Lords Constitution Committee has expressed concern over the concept of a “respectable legal argument” set out in the Government Legal Department’s guidance to government lawyers on legal risk.

The GLD guidance, which was published in 2018 following a freedom of information request and updated in August 2022, expands upon the need for lawyers to “provide solutions to legal obstacles”.

In a report, The roles of the Lord Chancellor and the Law Officers, the committee warned that the ‘respectable legal argument’ in the guidance “could represent a very low threshold for authorising legally uncertain action”.

The peers added: “While it may be conceptually correct that an action is not ‘unlawful’ until tested by the courts or where no legal justification can be found, acting on such an uncertain basis is dubious practice and contrary to the rule of law.”

The 2015 GLD guidance stated that risk should be considered against:

• the likelihood of a legal challenge being brought
• the likelihood of that challenge being successful, and
• the impact and consequences of that challenge, whether successful or not, including possible mitigations to reduce risks and impacts.

The committee noted that the guidance set out a ‘traffic light’ system, accompanied by percentages, for indicating the risk for each of the bullet points, and stated both that “Ministers may legitimately decide to proceed with a proposal even if it carries a high risk (70 per cent +)” and: “If there is no respectable legal argument that we could put to the Court, then you will need to advise that the proposed action is unlawful.

“This is likely to be highly exceptional and if you are in this territory you should refer the matter to your line manager and the Legal Director before you advise (a respectable legal argument is a credible argument the Government could properly run in court).”

An updated version of the guidance was published on 2 August 2022. The report notes that although the guidance does not go as far as forbidding Government lawyers from advising a course of action is unlawful, it does expand upon the need for lawyers to “provide solutions to legal obstacles”.

The then Attorney General, Suella Braverman, elaborated in a series of tweets that Government lawyers were “too cautious in their advice and this has hampered ministerial policy objectives needlessly”.

Braverman stated the change was intended to move away from the “‘computer says no’ approach”, to encourage a “solutions-based approach and use innovative legal thinking” and to “instil a ‘private sector’ approach to client service.”

In its observations on the “respectable legal argument” threshold, the Constitution Committee also said: “The concept may provide a helpful framework for the provision of advice by Government lawyers but a decision by ministers to act must not be based solely on a calculation of legal inconvenience.”

The committee outlined the idea that an alternative framework for assessing legal risk might be to do so in terms of a “necessary degree of confidence, as recently exemplified in the Lord Advocate’s reference to the Supreme Court on a Scottish Independence Referendum Bill.”

The report said the validity of the ‘respectable legal argument’ threshold itself depended on an uncertain threshold in the Attorney General’s guidance: "the level at which an argument becomes ‘respectable’.”

It added: “The guidance explains that this is an argument that can be properly put before a court, but this may be a subjective judgement. It also refers to an absence of such arguments as being ‘rare’ or ‘exceptional’: it is unclear whether this suggests the threshold is so low that an argument will almost always be found or whether the Government would not expect frequently to be contemplating legally dubious action.

“While the 'respectable legal argument' threshold may be justified in some circumstances of genuine legal uncertainty we are concerned that the threshold as currently set out in the guidance could sometimes be used purely for the convenience of the Government. Public confidence in the Government’s commitment to the rule of law demands that any threshold is meaningful and aligns with an ethos of genuinely seeking to comply with the law.”

Other key points found in the report were based upon on the role of the Lord Chancellor.

The committee said the Lord Chancellor should fulfil a wider, cross-departmental, role in defending the rule of law and educating his or her colleagues on its importance. "Historically, the office has fulfilled that role, there is already a statutory duty and, unlike the Law Officers, the Lord Chancellor is a full member of the Cabinet.”

The report stated that a core part of the Lord Chancellor’s role is defending the judiciary against “unfair, personal or threatening abuse”, noting that while criticism of the content of a judgment is acceptable, “targeted personal criticism which unfairly impugns a judge’s impartiality or inflames public sentiment against the judiciary” is not.

In these cases, a Lord Chancellor must intervene “promptly and publicly”, the committee said.

Baroness Drake, Chair of the Constitution Committee said: “The Lord Chancellor and Law Officers are among the chief guardians of the rule of law in our constitution.

“In a world in which authoritarianism and populism have challenged a rules-based global order in which democracy is sacrosanct, the protection of the rule of law in the UK - and in its interactions with the world - is ever more important.

"It is therefore essential that we have a Lord Chancellor who is willing and able, where necessary, to stand up to Cabinet colleagues and the Prime Minister, and Law Officers with the autonomy and strength of character to deliver impartial legal advice to the Government, even where it is unwelcome. This will help to ensure that the UK remains compliant with the rule of law, including its international obligations.

“The rule of law is vitally important to the health of our democracy. We urge the Government to renew and strengthen its commitment to this fundamental tenet of our constitution.”

Lottie Winson