Lord Hermer’s legal risk guidelines are back in the news, with the Telegraph reporting this week that the Attorney General has “handed himself an ‘effective veto’ over Government policy” and has “banned the Government from using Parliament to override international agreements”. The guidelines are indeed worrying, and parliamentarians and lawyers — not to mention the wider public — should call for their immediate reform.

The legal advice in question was published in November 2024, replacing that set out by Suella Braverman in 2022, when she was Attorney General. Hermer announced his plan to issue new guidelines in a speech last October, entitled “The Rule of Law in an Age of Populism”. Affirming the new Government’s rather self-congratulatory ambition to “restore our reputation as a country that upholds the rule of law at every turn”, he went on to say that he wanted “the thousands of brilliant lawyers working in every part of government […] to feel empowered to give their full and frank advice to me and others in government and to stand up for the rule of law”.

What’s not to like? Government lawyers should give full and frank advice and, like all lawyers, should stand up for the rule of law — not least by acting professionally and helping ministers better understand their legal duties. But the risks in Hermer’s speech were obvious. New guidelines might supercharge risk aversion and frustrate policy formulation and implementation. And his concern for the rule of law wrongly took that ideal as a license to displace clear, stable domestic law and to give priority instead to vague, distant human rights law and international law.

Some of the changes have been more semantic than substantive, such as the change from asking whether a legal argument was “respectable” to asking whether it was “tenable”. But others are much more serious, as my colleagues Conor Casey and Yuan Yi Zhu explained in a Policy Exchange paper last year.

The Attorney General instructed Government lawyers that reliance on a “tenable legal argument” should be a last resort and might even be “inappropriate” if fundamental rights are in play. He also directed Government lawyers to elevate questions more readily to the Law Officers, suggesting, as Casey and Zhu put it, that the Attorney himself might “end up wielding a de facto veto over a wide range of policy decisions”. The new “guidelines are constitutionally dubious”, they said, “because government lawyers are being enjoined to impress […] policy positions on ministers in the course of ostensibly giving legal advice”.

Even worse is the way in which the guidelines handle international law. As the Telegraph noted, the 2022 guidelines mentioned international law only once, whereas the 2024 guidelines mention it 24 times. The new guidelines do not attend carefully to the nature of international law, which is not simply, as Hermer sometimes seems to think, national law writ large. The international legal order is made up of disparate legal sources, is often animated by political considerations, and lacks effective means for enforcement — state consent to binding adjudication is a fundamental rule.

The Attorney General’s new guidelines direct Government lawyers to downplay the question of whether any court can hear a dispute about Britain’s international obligations, instead encouraging them to pressure ministers to comply with what a court might in theory decide. This risks the Government abandoning good legal arguments, which may be out of fashion among international lawyers, and failing to act in the national interest. Most worryingly of all, the guidelines assert a new constitutional principle about the status of international law, a principle that subverts the traditional priority of domestic law — which Parliament and the people can control.

Legal advice is rightly confidential, and by convention the Government does not disclose whether the Attorney General has given advice about some matter. But it seems likely that this approach to international law lies behind the baffling decision to abandon the Chagos Islands to Mauritius. In that case, the Government effectively ignored the UK’s procedural protections and its entitlement to stand on its sovereign rights.

In a speech in March, the shadow Attorney General, Lord Wolfson, forcefully challenged the guidelines. “Most ministers are not lawyers,” he said, “and these guidelines may make some think that their power to introduce legislation is somehow subject to the consent of Civil Service lawyers: it is not.” Quoting Casey and Zhu, he concluded that the guidelines “are apt to confuse ministers about the propriety of centuries of constitutional practice” and should “be altered so that they better reflect the core principles of our constitution”.

Wolfson was right in March, and the Telegraph was right earlier this week. Hermer’s guidelines invert the proper relationship between legal advisors and democratically accountable decision-makers. It is past time they were overhauled.