Lord Hermer gives himself ‘veto' over government policy
The Telegraph has seen the guidance given to government lawyers by the Attorney General, and the previous version of the document, which was issued by Suella Braverman in 2022.
Analysis of the documents reveals that Lord Hermer has made a number of controversial changes.
This includes inserting a new 'snitch clause', telling civil servants to inform him if ministers may be about to break the law.
Lord Hermer has also inserted 23 references to international law and watered down instructions by Mrs Braverman to avoid lawyers becoming a 'block' to government policy.
He has told lawyers they should assume that every decision made by a minister will be subject to a legal challenge, while the previous advice was that lawsuits were very unlikely in most cases.
The changes can be revealed after a series of complaints from Cabinet ministers that Lord Hermer had tried to block their decisions with spurious legal objections.
Guidance is issued to government lawyers by the Attorney General on the approach they should take when advising ministers.
Lord Hermer's advice has included that the UK should not join US and Israeli strikes on Iran because they may be in breach of international law.
Sir Michael Ellis, a former Conservative attorney general, said the changes to the document amounted to 'empire building' by Lord Hermer, who had 'effectively given himself a veto over all government business'.
Alex Burghart, the shadow chancellor of the Duchy of Lancaster, dubbed the guidance a 'surrender charter' that cements 'rule by lawyers' at the heart of the British state.
He said: 'Measures like the snitch clause will undermine discussion across government and harm our national interest.
'Keir Starmer's Attorney General is putting the partisan views of activist lawyers before the national interest.'
The updated guidance includes two new sections focused on international law, taking the total length of the document from three pages to five.
It argues that civil servant lawyers must treat international treaties, such as the Chagos deal, with the same weight as national law.
'The rule of law requires compliance by the state with its obligations in international law as in national law, even though they operate on different planes,' it says, adding that allowing ministers to breach international law could 'incur significant consequences, be they legal, political, diplomatic and/or reputational'.
The Telegraph's analysis of the documents reveals that Lord Hermer also banned the Government from using Parliament to override international agreements, as Rishi Sunak's government did last year to stop the European Convention on Human Rights (ECHR) from sinking the Rwanda plan.
The new 'snitch clause' says that government lawyers should report their politician bosses to the Attorney General if ministers defy the legal advice they have been given.
'If it is proposed to proceed with a course of action despite advice that it would be unlawful to do so because it is not supported at least by a tenable legal argument, law officer advice must be sought immediately,' it says.
Sir Michael said: 'This is another extraordinary overreach by Lord Hermer, who has effectively given himself a veto over all government business.
'It is quite something if ministers of the crown within the same Government cannot be trusted, and have to be snitched on by their own officials.
'I often received advice from lawyers whose opinion was that there was a minimal chance of success and then when the matter was later litigated the Government actually won the case.
'This is an empire-building charter for a stagnating and internally divided Government.'
Mrs Braverman's advice, which the Telegraph has seen for the first time, was designed to weaken the power of government lawyers to block policy, included several warnings about being obstructive to ministers.
It was revealed after questions were laid in Parliament by the Conservatives requesting that the Government publish the guidance.
Mrs Braverman's version of the document said it was 'rarely the case' that a legal risk to a government policy would prevent it from going ahead, and warned civil servants not to become a 'perceived block' by focusing on minor issues.
She also said that lawyers who have objections to a policy should 'identify mitigations' to help ministers pursue their policy.
Those lines were removed by Lord Hermer, who said that civil service lawyers should instead give 'full merits legal advice' that does not focus on whether a policy is technically illegal.
A source close to Lord Hermer said the accusations against him were 'desperate nonsense from a Tory party that has lost credibility on law and order and upholding the rule of law'.
The source said his guidance 'demands lawyers to be creative solution finders, enabling our ambitious plan for change to succeed – unblocking obstacles so that policies are not held up for years in the court as was always the way under the last administration'.
A spokesman for the Attorney General said: 'We are getting on with delivering the Plan for Change, from getting NHS waiting lists down, to rolling out free breakfast clubs in primary schools, expanding free school meals, and creating growth, wealth and opportunity for all.
'Government lawyers advise ministers, but it is always ministers that make decisions on policy as has been the case under successive governments.'
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