The report argues the guidelines will likely give government lawyers, and especially the Attorney General himself, more power and influence over policymaking, at the expense of ministers accountable to Parliament (and the people). The guidelines also represent an expansion of the Attorney General’s role vis-à-vis Government and Parliament, an expansion in tension with constitutional fundamentals. Finally, the new guideline’s treatment of international law represents an extraordinary change to the settled legal-constitutional position about international law and its relationship to Ministers and Parliament.

Notwithstanding the guidelines, the report argues that Ministers should feel confident that it is entirely legitimate for them to proceed with a policy that has a tenable legal argument underpinning it, even if government lawyers and the Attorney General deem it inappropriate to do so. Ministers are free to reject suggestions from government lawyers about the appropriateness or otherwise of proceeding with a policy with a tenable legal basis. Moreover, it is important that Ministers and parliamentarians understand that these guidelines cannot work a permanent change to our constitutional arrangements, even if they cause confusion and needlessly block policies in the short term. It remains open to the current, and any future government, to repeal these guidelines and replace them with guidelines more consistent with constitutional fundamentals.