In the wake of the controversy over Rwanda’s asylum plan, guidance was sent by Suella Braverman to lawyers last week saying they should refrain from dismissing the policies as illegal and instead give a percentage chance of challenge. It is the culmination of more than a year of rising tensions, with political advisers viewing the lawyers as overly cautious. They are perceived as obstructing the government’s policy agenda rather than thinking creatively to advance ideas. Lawyers, now describing it as the “U word”, hit back at the policy, describing it as an insult. “It calls into question our ability to hold government to account. What exactly is our role now?” said one. Others warned that the ministers risked breaking international law and, in turn, the ministerial code. The matter has come to the fore in the Ministry of Home Affairs. A government source said: “If we come and say we want something, they [lawyers] come back and say it’s illegal and we think there’s a 70 percent chance we’ll lose. They don’t go, “Well, there’s a 30 percent chance a judge will find it legal, so we have to do it. There will be some who say it’s illegal for x, y, z reasons and not: ‘How can we make a legal argument that it’s legal?’
“Idiot” idea
Dominic Grieve, who served as Attorney General from 2010 to 2014, described the ban as a “stupid” idea. “I can’t really understand why this happened,” he said. “Clearly, the duty of government lawyers is always – if they are faced with a problem and asked whether something is likely to be successfully challenged – to give their best advice based on their understanding of the law. But if they think something based on precedent and its nature is illegal, they should be able to say so.” He added: “It seems very odd to remove the ‘U’ word because, ultimately, it is still up to the government if they wish to follow the advice of their lawyers. He may decide to proceed with something he considers illegal. Indeed, this current government under the current Prime Minister has been rather willing to do that at times.” Under the new guidance, attorneys will be asked to avoid binary answers and instead state the likelihood of a challenge. They then have to state the probability of winning or losing. Only a line manager or legal director can sign off on an “illegal” response to a policy. Experts said the policy gave ministers reasons to pursue what they considered illegal policies because nothing would ever be considered 100 percent illegal if it hadn’t already been tested in the courts.
