Britain: Where nothing gets done

On government lawyers

On Sunday I explained all things judicial review. I do it so you don’t have to. To recap judicial review is the main reason why nothing gets done in Britain: you can’t cut the benefits bill, you can’t build a third runway at Heathrow, and you can never deport that criminal with tattoos all over his face even though he is a drug dealer and rapist.

Again, judicial review is where a member of the public, such as a benefit claimant, a Nimby, or child of the rapist drug dealer who has tattoos over his face, employs a human rights barrister and challenges the government in court claiming: you can’t do that. You cannot make me look for a job, you cannot build a third runway or you cannot deport my dad as this is in breach of my human rights. They challenge legislation or acts that have already miraculously, somehow been passed by Parliament.

But before the human rights lawyers get going with their judicial review, there are the government lawyers. These lawyers advise the government as to whether their proposed policy is lawful, whether if it does become law it can withstand a legal challenge including judicial review.

Lord Hermer KC is the chief government lawyer. He is King Lawyer aka the Attorney General. Previously, Lord Hermer KC took many cases against the government and “he never acted in a case for the government.” He also represented clients such as Gerry Adams, as he is entitled to.

Now Attorney General, Lord Hermer KC has changed the test government lawyers must use when advising if certain proposed legislation will withstand legal challenge.

Sky news described it as follows: “Late last year, Lord Hermer bolstered guidance to government lawyers so that they must advise ministers that policies should be considered unlawful if "no tenable argument" could be made in the event they were challenged in court.”

Photo by Jess Zoerb on Unsplash

This led to The Times reporting, “Ministers have told The Times that the move by Lord Hermer KC to significantly increase the power of government lawyers has resulted in delays to policies even if there is a relatively marginal risk.”

This doesn’t make any sense. Government policies that have no tenable argument are at significant risk of failing in the courts, not marginal risk. The gap is due to political spin.

So to clear this up (as it was annoying me all Sunday) I went to the man himself who gave an interview, to the barrister trade magazine Counsel in December. Lord Hermer KC said:

“When I arrived in post I was concerned at the AG’s guidance on legal risk. It wasn’t driving standards in the right direction. I revised it with the Treasury Solicitor and other legal heads. I am determined that the law should be at the centre of what we do. Governments who play fast and loose with the law get into real trouble. The rule of law requires that we are all governed equally by the same set of rules, rules that reflect human dignity.

Every day we have to decide on a range of foreign policy and domestic issues that are politically sensitive. Certain outcomes are more uncomfortable than others. Government has tended to work on the basis that it can favour choices if they are legally arguable, but in most scenarios I don’t want the legality of government action to be calibrated in accordance with an argument that might be poor but wouldn’t get counsel struck off. We must be satisfied that the action is lawful.’

In ‘most scenarios’? ‘There are some situations where the law is uncertain or unclear and where we would want clarification from a court.’”

So that is the test. Government proposed policy will only get past the government lawyers if they are satisfied that the action is lawful. This means that the government must anticipate the arguments that will be made against them (usually by human rights lawyers via judicial review) and be satisfied that they, the government, would win the argument at court. I think that’s a pretty high standard but it’s difficult to say.

Lord Hermer KC also said, “My job is to speak truth unto power. Government lawyers know that when they do I have their backs.”

An interesting read.