If a minister does an unlawful act but it is not legally challenged, does it matter? This is in one way the constitutional law version of the philosophical question about whether a tree falling in a forest makes any sound.
But it is not an abstract issue, for a great deal of what governments do and do not do will never be put before a court, but should be in accordance with the law anyway.
The notion of the “rule of law” should mean that there is a lawful basis for each action and inaction by the state. For everything the government does and does not do, one should be able to point to some relevant law.
Unless there is a law which provides for what is being done or not done, then there is a violation of a first principle of our constitutional order. Not even the Crown, let alone any politician or civil servant, is above or outside the law.
Ministers and officials thereby need to have legal advice. Few are lawyers themselves, and even if they are legally qualified, only fools have themselves as clients. The advice needs to be independent and fearless. Politicians and civil servants should be told what they need to know about the legality of their work, rather than what they want to hear. Wise decision-makers know this.
The government therefore has a service in place for the provision of legal advice. Lawyers are placed in every department for the assistance of ministers and officials. There are also additional lawyers in the central Treasury Solicitor’s department and in the office of the attorney general.
Many of these lawyers are experienced and highly regarded, and quite the match for their counterparts in the City and the Inns of Court. But the government also can afford the best advice from external firms and independent barristers. The government of the United Kingdom does not want for lawyers and legal advice.
Some critics, however, see this as unwelcome. The centrality of legal advice and legality in government decision-making and rule-making is seen as a problem in itself. Dismissive lines are published about “rule of lawyers” not “rule of law”. Government legal advice is characterised as “unhelpful” and “obstructive”. We are told that pesky lawyers inhibit ministers and officials from taking risks and being robust. The real causes of public sector failure, it appears, are lawyers and indeed the rule of law.
Blaming lawyers for the faults of their clients, however, is to fall for one of the very oldest of tricks. Lawyers advise, and ministers decide. If the law is against the state, then the state is often well-positioned to change the law. If there is a risk of legal challenge then it is usually open to the government to do things which minimise or eliminate the risk of legal challenge. In either case the buck does not stop with the lawyers.
From time to time the government publishes guidance on how legal risks should be assessed within government, and last week the latest guidance was published. (The last set of guidance, from 2024, was deftly removed from the government website and, curiously, it can now readily only be found on the internet archive.) The latest version seems to encourage more risk-taking by ministers.
The differences between the 2024 and 2026 versions of the guidance should not be overstated. As the former head official of the government legal service Jonathan Jones says sagaciously, it is doubtful “whether it will make much difference to the day-to-day work of government lawyers”.
But the differences between the two versions are not without interest, especially in respect of that worthy old concept of the rule of law. The 2024 version had this as its heady first two sentences: “A central element of the rule of law is that everyone—including the government—is subject to the law. As such, the government is required to comply with legal obligations arising under domestic and international law.”
The 2026 version not only removes this introduction, it also does not even mention the rule of law at all. The focus is less on advising officials and ministers on compliance with the law, and on the risk of breaching that law, and more on whether the government will face any legal challenge and, if so, whether that challenge would be successful.
In other words, there is an emphasis shift on legal advice being more for whether central government can get away with breaching the law. If there is no practical likelihood on the government being challenged then ministers should feel more confident in proceeding with what would, on the face of it, be unlawful actions.
Of course, assessing the likelihood of a successful challenge has always been part of the job of government legal advice. But there are many areas of government activity where, for various reasons, there is no realistic prospect of it going before the courts: international law is not normally justiciable in domestic courts; the government may control the flow of evidence; changes to court procedure and legal aid may make challenges impossible; and so on.
And there are means by which ministers can take decisions which have little or no lawful basis. This week also saw news of a settlement payment for the former cabinet secretary Chris Wormald which seems to have no contractual basis whatsoever. The decision to make this payment was explicitly escalated to a minister for a “ministerial direction”. If ministers really want to make robust and brave decisions they can do so, but they must own those decisions.
In these areas where there is little likelihood of a successful legal challenge, the principle of the rule of law should mean that the government complies with the law anyway. A falling tree in a forest should, at least in public law, still make a sound even if there is no court to hear it.
