Playing The Odds: The Government’s New Approach To Legal Risk In Public Law Decision Making

With every new Prime Minister comes a recalibration of how Government is to be run. Given the number of political changes in recent years, we should now be used to bold statements at the beginning of a new leadership setting a fresh direction – it may be more or less risk averse, more or less controversial, more or less committed to the rule of law. Despite that context, last week’s letter to all ministers on The Simplification and Agency of Government still managed to raise a fair number of eyebrows. 

The letter emphasises the desire for the Executive to be able to get on and govern (although the sentiment is intended to be applied across the wider public sector), without “counterproductive administrative burdens”. Read on and it becomes clear what those “administrative burdens” are. The letter addresses three areas where the Government wants to take a different approach: (i) consultations; (ii) legal considerations; and (iii) judicial review. 

Consultation

The letter reasserts that there is no general duty of consultation. This is uncontroversial - judges are very clear on this point and those of us who keep up to date with the caselaw on consultation see no danger of that starting point being muddied by the courts. 

What the Government wants instead of box-ticking consultation is “more participatory policymaking”, which appears to mean direct early engagement. Coincidentally, this comes after developments in the caselaw over recent years by which early engagement will not necessarily be regarded as a formal consultation attracting the public law duties known as the Gunning principles (see our blog post for more detail), and may therefore be less susceptible to challenge. 

Consultation was never intended to be a box-ticking administrative exercise. Lord Wilson in R (on the application of Moseley) v Haringey LBC [2014] UKSC 56identified the rationale behind consultation as tending to ensure better decision making, by exposing the decision maker to relevant information and arguments; avoiding a sense of injustice among those affected; and reflecting a democratic principle, ensuring that those affected are given an opportunity to be heard. The law around consultation, particularly the Gunning requirements (i.e. consult at a formative stage, provide sufficient time and information and properly consider the responses), simply supports this rationale so that the benefit and purpose of consultation can be achieved. No doubt there are situations where consultations unnecessarily delay important policies or reforms. But the courts have shown themselves to be adaptable and realistic – see for example a recent decision finding a four-day-long consultation sufficient in a situation where there was real urgency (R (on the application of Gatwick Airport Limited) v Secretary of State for Transport [2026] EWHC 1733 (Admin)). 

More courageous is the letter’s assertion that formal consultation should only take place where there is a statutory requirement to consult, where it would be conspicuously unfair not to consult, or where ministers believe there is a good case for seeking external input and that the right vehicle for doing so is a formal consultation. Even where decision makers have historically consulted or previously promised to consult, each individual instance is apparently to be considered afresh, suggesting that the historic practice or promise will not be determinative. 

This leads to possible tensions with the current law on when there is a duty to consult, where R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662 (QB) remains the leading authority. There, the Divisional Court identified four main circumstances leading to a duty to consult: (i) where there is a statutory duty; (ii) where there has been a promise to consult; (iii) where there has been an established practice of consultation; and (iv) where, in exceptional cases, a failure to consult would lead to conspicuous unfairness. While the last of these categories has suffered from some confusion (as discussed in our recent New Law Journal article), the others were thought to be settled and uncontroversial. Mapping these against the Government’s letter, however, categories (ii) and (iii) (which together are where there is a legitimate expectation of consultation by promise or established past practice) appear to be very much at risk. 

New general guidance is promised, alongside a mass repeal of statutory duties to consult that are considered “unnecessary”. Whilst the latter may be effective, it is unclear how any decisions made on the basis of this new approach or following any new guidance will fare in the courts in light of the established legal position. 

Legal considerations

The thinking behind this approach may be clearer once you move on to the second area of focus in the letter: the new approach to legal risk.

The central message is that decision-makers can proceed provided there is a “tenable” legal argument. The letter was closely followed by amended guidance from the Attorney General (AG’s Legal Guidance, 8 September 2026), which illustrates in vivid technicolour that it is “proper and constitutional” to advance decisions with a greater than 70% chance of being successfully challenged as having tenable legal support. The likelihood of anyone bringing a challenge is also a key factor to be assessed. 

All lawyers know that attaching percentages is a tricky and subjective game. Whilst not therefore wishing to place too much emphasis on percentages, it is interesting to compare the AG’s guidance with separate guidance on the Government’s AI risk management toolkit published on the same day. This encourages risk assessment and quantification for AI tools in an effort to reduce barriers to AI adoption in the public sector, and describes risks with a greater than 80% probability as “almost certain to occur”. Reading that across to the AG’s guidance, this could be read as suggesting that it is proper to make a decision where the legal advice indicates a successful challenge is almost certain to occur. 

Putting things bluntly, the suggestion appears to be that, even if it is almost certain (or, at least, highly likely) that the decision will be quashed as unlawful, ministers should go ahead and make the decision anyway, especially if it is not clear who might actually enforce the law by bringing a challenge. Bold indeed. Query whether the first test of this will be a decision not to consult despite an established legitimate expectation in line with Plantagenet Alliance…

Judicial Review

Whilst acknowledging that the courts fulfil a core constitutional role in acting as a check on the Executive, the Government takes the view that “in some instances it has become clear that the system of judicial review is out of balance”. The letter makes clear the intention to broaden the ongoing programme of reforms to judicial review in respect of energy nationally significant infrastructure projects (NSIPs) to all NSIPs, including transport and water. Much has already been written about the merits or otherwise of these reforms, including the unusual route of seeking Parliamentary endorsement for a particular project as a way to seek to immunise the project from judicial review except on human rights grounds. 

Implications

While the Government is clearly hoping that this change of direction and updated AG’s guidance will help it achieve its aims, one obvious practical outcome of decision makers following this direction from the Government will surely be decisions that are less legally robust and more susceptible to challenge. 

Also published recently were quarterly statistics showing judicial review applications were up 42% as compared to the same quarter last year. The court system is acknowledged to be facing a significant burden and resourcing issues, not least due to litigant use of AI to prepare applications. It is therefore unfortunate that the Government appears bound for even more increases in judicial review applications, and presumably more that will be successful, by playing the odds with the law and legal risk. 

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