'Government will not be cowed': Hermer reassures MPs on legal risk guidance

Amended guidance for Whitehall lawyers on legal risk will not deter the government from taking on litigants with deep pockets, the attorney general has assured MPs.

Richard Hermer KC revealed last year that he was updating the Attorney General’s Guidance on Legal Risk, which helps lawyers advising on lawfulness and legal risk in government.

Appearing before the House of Commons justice select committee last week, Hermer was asked by Labour MP Sarah Russell about the practical impacts of his amendments.

Hermer said the document needed to be updated because it risked diluting legal standards. ‘It led to what I thought was an unfortunate risk of ministers being advised that there was a respectable legal argument for Policy A. What decision makers weren’t told is that what "a respectable legal argument" meant was that it was highly likely to be unlawful but that if you advanced it in court you wouldn’t be struck off for advancing such a poor argument. It struck me that, that could never become the default position for law in government,’ Hermer said.

However, noting that the previous administration had been challenged by cereal giant Kellogg’s over food regulations, Labour MP Sarah Russell raised concern about a ‘chilling effect’ and the risk of potential litigation influencing what ministers are prepared to do. Leasehold reform would be in the best interests of many of Russell’s constituents but companies are likely to consider litigation, she added.

Hermer said the lawyers’ role was to ‘help tool up decision makers' with all the relevant information and central to that was the legal analysis.

He added: ‘Any good legal advice will include a risk analysis. What happens if you take this litigation? What are all the risks you would face? In the same way I have spent 30 years advising clients outside of government, you would look at a case, you would assess what the legal merits are, you would work out what happens if you lose, what are the downsides, what are the costs, what are the implications…

‘I don’t think government is going to be cowed in doing the right thing by fear of facing well-resourced litigants in court. If we are confident in our policies having decided these are policies we want to take, if we are confident in their legality or comfortable with the degree of legal risk, the mere fact that it’s a well-resourced defendant on the other side is not going to stop government, I imagine, moving forward.’