Attorney General's guidance to government lawyers 'unconstitutional', thinktank argues

Newly amended guidelines to help government lawyers challenge ministerial decisions represent an expansion of the attorney general’s role in government in tension with constitutional fundamentals, free market thinktank Policy Exchange warns today. The new guidelines, issued earlier this month, also misunderstand the role of international law, a research paper claims. 

According to the report, the new 'legal risk guidelines' expand the circumstances when a legal issue must be escalated to the attorney general, in practice giving the postholder a veto over a wide range of policy decisions where such decisions deemed legally risky or because they concern 'fundamental rights'. 'This, of course, would be an unwarranted and unconstitutional development,' authors Yuan Yi Zhu and Richard Ekins argue. 'The function of the attorney general is to advise ministers, but it is for ministers to take decisions.'  

The report warns that, despite the new guidelines making numerous references to international law, they 'fundamentally misunderstand the nature of international law as well as its constitutional status in the UK'. While international treaty obligations are not part of UK domestic law unless incorporated by parliament, the guidance asserts that the government should not ask parliament to legislate contrary to treaty obligations. 

'By treating domestic law and international law as equal, the guidance opens up the possibility of ministers using international law to bypass parliament, then claim that their policies are required by international law and the rule of law, thus undermining parliament,' the report states. 

Announcing the revised guidelines earlier this month, Richard Hermer KC, the attorney general, said they would empower government lawyers ‘to give their full and frank advice to me and others in government to stand up for the rule of law’.