‘Legal risk’ means any risk of a court, whether domestic or international, deciding that something is unlawful, or the risk of a penalty resulting from non-compliance with legal requirements.
Published 2 August 2022
This Attorney General’s Guidance is for lawyers advising on lawfulness and legal risk in Government. It explains the common framework to assess risk across the Government Legal Profession. It provides guidance on how to make advice practical, meaningful and focused on finding solutions. When dealing with legal risk, there can be a perception that because there is some legal risk in a proposed policy or course of action, that may prevent it from happening. In fact, that is rarely the case. Advice on legal risk should be used as one tool to help guide the best development of plans and policies and to support Ministers to deliver the Government’s objectives. This Guidance is designed to help you in your role as a lawyer advising the Government on risk. It is focused on Ministers making policy or operational decisions, but is adaptable to other decision-makers and other areas of law across central government.
As civil servants, the job of government lawyers is to advise Ministers, and to help them in their overarching duty to comply with the law. Ministers will want to understand the nature and scale of risks before making their final decision. Government lawyers should be clear about their Ministers’ objectives when drafting advice. Solutions-based advice and proposals to mitigate risks are most useful to Ministers.
Legal risk is one, but not the only, type of risk that they will want to consider. The fact that something is judged to involve high legal risk does not mean it cannot or should not be taken. For example, something that is very high risk may have little or no impact and, equally, something low risk could have a major impact. Only if no respectable legal argument can be put to a court should it be advised as being unlawful. This will be rare.
