Can a Government Act When It Expects to Lose in Court? The UK’s New Legal-Risk Debate

“A government may gamble with the risk of losing a case, but it must never gamble with the rights of the people. The law may tolerate uncertainty; it must never become a tool for turning uncertainty into power.”

— Adv. Tarun Choudhury, Supreme Court Advocate | 25+ Years of Legal Experience

There is a deceptively simple question at the heart of Britain’s latest debate about UK government legal risk:

How Much Legal Risk Can a Government Legitimately Accept?

How much legal risk can a government legitimately accept before taking action that may ultimately be declared unlawful?

The question has acquired new urgency following the UK government’s revised guidance on legal risk for government lawyers.

Some headlines have presented the development in almost dramatic terms: ministers may take greater legal risks and may proceed with policies even where the government faces a substantial prospect of losing a subsequent court challenge.

That description captures the controversy, but it can also obscure an important legal distinction.

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The Guidance Does Not Give Ministers a License to Break the Law

The guidance does not give ministers a license to break the law.

Nor does a government lawyer’s view that an argument is “tenable” prevent a court from subsequently finding government action unlawful.

The real issue is considerably more interesting.

It is about what happens when a democratically elected government has a legally arguable position, but its own assessment suggests that a court may well reject that position.

That takes us directly into the difficult territory occupied by ministerial responsibility, judicial review, executive power, and the rule of law.

The Question Britain Should Be Asking

Imagine a minister receives legal advice that says:

There is a tenable legal argument supporting the proposed policy, but there is a substantial possibility that the courts will ultimately disagree.

The minister has two choices.

Option	Possible Government Response
First	Abandon or modify the policy.
Second	Proceed, accepting the possibility of litigation and defeat.

The second option is not necessarily unlawful.

That point needs to be understood.

Governments cannot realistically be required to act only when their lawyers can guarantee that a court will agree with them. Legal questions are often uncertain. Statutes can be ambiguous. Existing authorities may not provide a definitive answer. New circumstances can create questions that courts have never previously considered.

A government that could act only when victory in litigation was virtually certain would risk becoming excessively cautious.

But that leads to the next question:

When Does Legitimate Legal Uncertainty Become Unacceptable?

When does legitimate legal uncertainty become an unacceptable willingness to operate at the edge of legality?

That is where the constitutional debate begins.

What Does “Tenable” Actually Mean?

The word “tenable” deserves particular attention.

A tenable legal argument is not necessarily a winning argument.

It is not necessarily the interpretation that a court is most likely to adopt.

And it does not amount to judicial confirmation that the government’s proposed action is lawful.

The concept is better understood as identifying a legal position that is sufficiently arguable and defensible to be capable of being relied upon in governmental decision-making.

That distinction matters enormously.

Two Different Legal Interpretations

Suppose two legal interpretations exist.

• One has considerably stronger support in existing case law.
• The other is novel but nevertheless capable of being argued.

The second may potentially be “tenable.”

But should the existence of that argument alone be enough to justify governmental action?

That is the uncomfortable question.

A constitutionally responsible system must distinguish between:

“There is genuine uncertainty in the law.”

and

“We can find an argument, however weak, that allows us to do what we already want to do.”

Those are not the same thing.

Legal Risk Is Not the Same as Illegality

This distinction should be kept at the center of the entire debate.

A government can take a legal risk without acting unlawfully.

For example, lawyers might advise that a proposed interpretation has a reasonable prospect of succeeding but that the issue is sufficiently novel that litigation is likely.

Proceeding in such circumstances is not necessarily a breach of the rule of law.

When Does Legal Risk Become a Constitutional Problem?

But suppose the legal advice becomes dramatically different:

Existing binding authorities strongly indicate that the proposed action is unlawful. There is no meaningful statutory basis for departing from those authorities. The only argument available is highly artificial.

At some point, describing the matter merely as “legal risk” becomes misleading.

The constitutional problem is therefore not simply how much risk is acceptable.

The Quality of Legal Reasoning Matters

It is:

What quality of legal reasoning is sufficient to justify executive action where the government knows that the courts may reject its position?

That is a much more sophisticated question than assigning a percentage probability to litigation.

Why the 70% or 90% Question Can Mislead

Much of the public discussion naturally gravitates towards probability.

• What if the government has a 60% chance of losing?
• What about 70%?
• What about 90%?

But constitutional law is not an actuarial exercise.

A court does not ordinarily ask:

“Did the government have a 30% chance of winning?”

The court asks whether the government possessed the legal power to act and whether that power was exercised lawfully.

Probability is useful to a minister deciding whether the political and practical consequences of litigation are acceptable.

But probability cannot itself create legal authority.

That is a critical safeguard.

A minister cannot say:

“There is a 20% chance that the court will uphold us; therefore, we have a legal right to proceed.”

Nor can the government say:

“Our lawyers identified a tenable argument; therefore, our decision is immune from judicial review.”

Neither proposition follows.

The Minister Decides—But the Court Determines Legality

One of the strongest arguments supporting the government’s approach is that ministers, rather than government lawyers, are ultimately responsible for political decisions.

That is entirely understandable.

• Lawyers advise.
• Ministers decide.

An elected minister must sometimes make decisions involving competing public interests, financial consequences, political commitments, and uncertain legal outcomes.

It would be constitutionally problematic if government lawyers became the de facto decision-makers.

But ministerial responsibility has a corresponding limitation.

Political responsibility does not replace legal authority.

A minister may decide to accept the consequences of litigation.

A minister cannot decide that an Act of Parliament means something; it does not mean simply because the government prefers that interpretation.

Nor can ministerial confidence displace judicial determination when the legality of executive action is properly before a court.

This is where the constitutional balance becomes delicate.

Judicial Review Is the Safety Valve

The UK’s system of judicial review provides an essential check.

If a minister takes a decision that is legally defective, a person with sufficient standing may challenge it.

The court can then examine the legality of the decision.

That does not mean every government decision should be frozen until a judge has approved it.

It means that executive power remains subject to legal supervision.

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The Constitutional Sequence

This produces a constitutional sequence:

Stage	Constitutional Function
The government proposes	A policy or course of action is developed.
Lawyers advise	Legal risks and available arguments are assessed.
The minister decides.	The elected minister takes responsibility for the decision.
Policy is implemented.	The government puts the decision into practice.
The court reviews legality if challenged.	The judiciary determines whether the executive action was lawful.

The new guidance primarily concerns the first three stages.

It does not abolish the fourth.

And that is why it is important not to describe the new policy as giving ministers permission to act unlawfully.

It does not.

The more subtle issue is whether the willingness to accept litigation risk can itself become excessive.

The Most Difficult Case: When the Government Expects to Lose

Now consider the hardest hypothetical.

Government lawyers tell a minister:

“There is a tenable legal argument in favor of the policy. However, we consider it more likely than not that a court will ultimately find the policy unlawful.”

The minister nevertheless proceeds.

A judicial review is brought.

The court eventually agrees with the challenger.

Has the government violated the rule of law merely because it knew it might lose?

Not necessarily.

There is a crucial difference between:

Situation	Constitutional Significance
Knowingly taking a risk that a court may disagree with a genuinely arguable interpretation of law	Can arise from legitimate constitutional decision-making.
Knowingly acting contrary to a legal rule that the government accepts applies to it	Raises a far more serious rule-of-law concern.

The former can arise from legitimate constitutional decision-making.

The latter raises a far more serious rule-of-law concern.

The difficulty is that the boundary between them will not always be obvious.

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The “Tenable Argument” Problem

This may ultimately be the most controversial aspect of the debate.

Every sufficiently creative lawyer can potentially identify arguments on both sides of many difficult legal questions.

But should the executive be permitted to proceed whenever any legally arguable proposition can be formulated?

I would argue that the answer must be no.

“Tenable” cannot sensibly mean:

Anything a clever lawyer can construct.

The argument must be evaluated in its proper legal context.

Factors That Should Be Considered

That should include:

• the wording of the relevant legislation;
• binding judicial precedent;
• constitutional principles;
• Parliament’s apparent intention;
• fundamental rights;
• procedural fairness;
• the purpose of the statutory power;
• the factual basis of the decision; and
• the availability of less legally risky alternatives.

The stronger the contrary legal authority, the greater the justification that should be demanded from the government.

What About Fundamental Rights?

The constitutional stakes become even higher when government action affects fundamental rights.

Consider a policy involving:

• liberty;
• immigration status;
• freedom of expression;
• property;
• privacy;
• equality;
• access to justice; or
• the rights of vulnerable individuals.

A temporary administrative inconvenience is one thing.

An unlawful detention, deprivation of property, or serious interference with fundamental rights is something else entirely.

The greater the potential harm, the less comfortable society should be with a government effectively saying:

“We know there is a significant legal risk, but we are prepared to take it.”

This suggests that legal risk cannot be assessed solely by reference to the probability of losing litigation.

The severity and reversibility of the consequences must matter too.

Legal Risk	Potential Consequence
30% chance of losing a case involving a minor administrative matter	May involve comparatively limited constitutional consequences.
30% chance of unlawful deprivation of liberty	May involve significantly greater constitutional consequences.

A 30% chance of losing a case involving a minor administrative matter is constitutionally very different from a 30% chance of unlawful deprivation of liberty.

What If the Policy Cannot Easily Be Undone?

There is another issue that deserves greater attention.

Suppose a government implements a controversial policy.

Judicial review takes several months.

Eventually the court declares the policy unlawful.

But during those months:

• People have lost homes;
• Businesses have suffered losses;
• Individuals have been detained;
• Families have been separated;
• personal information has been disclosed; or
• Irreversible decisions have been made.

The later court victory may establish the legal principle.

But it cannot necessarily restore everything that happened in the meantime.

Should Reversibility Affect Government Legal Risk?

This raises a fundamental question:

Should the government’s willingness to accept legal risk depend partly upon whether the consequences of being wrong can be reversed?

In my view, that question deserves considerably more attention in the public debate.

The Government Has a Strong Argument Too

A fair constitutional analysis must acknowledge the government’s side.

Governments have responsibilities that private litigants do not.

They must:

• respond to emergencies;
• administer complex statutory schemes;
• implement political programs; and
• make decisions even when courts have not previously ruled on the precise question.

Excessive legal conservatism can itself damage good government.

Imagine a minister being told:

“Your policy is probably lawful, but we cannot proceed because there is a small possibility that a court may disagree.”

That could produce bureaucratic paralysis.

The rule of law does not require government to eliminate every possibility of litigation.

It requires government to act within the law and in good faith as to its legal obligations.

That is why the new guidance should not automatically be condemned simply because it encourages ministers to recognize and accept legal risk.

The real question is how that principle is applied.

The Danger of Turning Lawyers Into Policy Enablers

There is, however, another constitutional safeguard that should not be weakened.

Government lawyers must be able to give independent, candid, and uncomfortable advice.

Their role cannot become:

“Find me a legal argument that allows this policy to proceed.”

Their role must remain:

“Here is the law as I understand it, here are the arguments on both sides, here are the risks, and here are the lawful options available.”

That difference is crucial.

A lawyer who simply searches for the weakest arguable justification may help a policy survive politically in the short term while weakening an important constitutional safeguard.

The best government legal advice should sometimes tell a minister:

“No.”

It should sometimes say:

“Yes, but only if the policy is changed.”

And sometimes:

“Yes, but this is an unusually high-risk course, and you must understand the consequences.”

That is what meaningful legal advice looks like.

Who Should Bear the Consequences?

Another question deserves attention.

If ministers are encouraged to accept greater legal risk, what happens when the government loses?

There can be:

• legal costs;
• compensation claims;
• wasted public money;
• administrative disruption;
• political consequences;
• parliamentary scrutiny; and
• loss of public confidence.

But there is something even more important.

The immediate cost may be borne by citizens rather than ministers.

The individual affected by an unlawful government decision may have to find a lawyer, bring proceedings, and wait for a court to intervene.

That creates a constitutional asymmetry.

The government has the resources of the state. The individual may have nothing more than the willingness to challenge it.

A healthy system therefore requires meaningful access to judicial review and effective remedies.

Could This Create a “Litigate First, Correct Later” Culture?

This is perhaps the most serious institutional danger.

If governments become comfortable with implementing policies carrying substantial legal risk on the assumption that courts will correct them later, judicial review could gradually become a repair mechanism for executive mistakes rather than a genuine safeguard against them.

That would reverse the constitutional logic.

Courts should not become the government’s after-the-event policy department.

The executive governs.

Parliament legislates.

Courts determine legality.

Each institution has a distinct constitutional role.

The Constitutional Line

Where, then, should the line be drawn?

There is no magic percentage.

Instead, several questions should be asked.

1. Is the Legal Argument Genuinely Tenable?

Not merely imaginable—but legally respectable.

2. What Does Existing Binding Authority Say?

A novel argument carries different weight where courts have already spoken clearly.

3. What Did Parliament Intend?

Executive power must ultimately derive from lawful authority.

4. What Rights Are Affected?

Greater constitutional caution is appropriate where serious rights are at stake.

5. Can the Consequences Be Reversed?

Irreversible harm should weigh heavily against taking extreme legal risks.

6. Is There a Safer Lawful Alternative?

If the government can achieve substantially the same objective through a less legally vulnerable route, that alternative deserves serious consideration.

7. Is the Government Genuinely Accepting Uncertainty—or Simply Avoiding an Inconvenient Legal Conclusion?

That may be the hardest question of all.

The Question That Could Define the Debate

For me, the most interesting constitutional question arising from this development is not

“Can ministers take legal risks?”

The answer to that is plainly yes.

The real question is

Can a democratically elected government legitimately implement a policy that it believes has a substantial probability of being declared unlawful merely because its lawyers can identify a tenable legal argument supporting it?

And there is an even sharper version:

At what point does accepting legal risk cease to be responsible ministerial decision-making and become an attempt to shift the burden of determining legality from the executive to the courts?

That is the question Britain should be debating.

Britain Does Not Need Risk-Free Government

There is a danger of taking this debate too far in the opposite direction.

A government cannot operate as though every uncertain legal question requires prior judicial approval.

That would be neither practical nor desirable.

Democratic government requires decision-making.

Legal advice necessarily contains uncertainty.

Ministers must sometimes make difficult choices.

So Britain does not need risk-free government.

It needs legally responsible government.

The difference is profound.

Risk-free government would be paralyzed.

Legally irresponsible government would threaten the rule of law.

The constitutional objective must lie between those extremes.

My View: The “Tenable” Threshold Must Have Constitutional Discipline

The new approach can be defended if “tenable” is understood as a genuine legal threshold rather than a rhetorical escape route.

But it should never become a formula by which ministers can say:

“Our lawyers found an argument; therefore, we can proceed.”

The stronger the contrary law, the greater the justification required.

The more serious the potential interference with rights, the greater the caution required.

The more irreversible the consequences, the harder it should be to justify proceeding on extreme legal risk.

And where there is no genuinely respectable legal basis for the proposed action, the government should not disguise illegality as “risk.”

Ultimately, political accountability and legal accountability are different things.

A minister may be politically willing to accept the consequences of losing a court case.

That does not give the minister the power to determine what the law is.

Conclusion: The Government May Take the Risk—But It Cannot Choose the Verdict

The most important point in this entire controversy is perhaps the simplest.

Ministers may have to take legal risks.

But they cannot control the legal outcome.

A government lawyer may identify a tenable argument.

A minister may decide that the political importance of the policy justifies accepting the litigation risk.

A claimant may then bring judicial review.

And a judge may ultimately say:

“The government was wrong.”

That is not a failure of democracy.

It is the constitutional system working.

The real danger would arise if the government began to regard the existence of a tenable legal argument as a substitute for actual legal authority.

The rule of law does not demand that governments always predict the courts correctly.

It demands something more fundamental:

that governments remain subject to law even when the law is inconvenient.

That is why the UK’s new debate about UK government legal risk deserves attention far beyond Westminster.

The ultimate question is not whether ministers are allowed to gamble.

It is whether, in a constitutional democracy, the government should ever be comfortable making citizens bear the consequences of a legal gamble when it already knows that the courts may well rule against it.

That is a question neither lawyers nor politicians should be able to answer casually.

About the Author

Adv. Tarun Choudhury is a Supreme Court Advocate with more than 25 years of legal experience. He writes on constitutional law, international law, human rights, and emerging legal developments affecting governments, institutions, and citizens.

Frequently Asked Questions

1. Can the UK Government Act on a Policy Even if It Has a High Risk of Losing a Judicial Review?

Yes, potentially. The UK’s revised legal-risk guidance recognizes that ministers may decide to proceed where there is a tenable legal argument, even when there is significant legal uncertainty or a substantial risk of a successful judicial review. However, this does not give ministers permission to act unlawfully. The courts retain the power to determine whether government action is legally valid.

2. What Does “Tenable Legal Argument” Mean in UK Constitutional Law?

A tenable legal argument is a legally defensible interpretation that can reasonably be advanced, although it may not necessarily be the interpretation a court will ultimately accept. It is important to distinguish a tenable argument from a guaranteed winning argument. The concept is central to the current debate about UK government legal risk and ministerial legal advice.

3. Does the UK’s New Legal-Risk Guidance Allow Ministers to Break the Law?

No. The guidance does not create a legal power for ministers to disregard legislation, binding judicial decisions, or the rule of law. Ministers may accept legal uncertainty and litigation risk, but the ultimate legality of executive action remains subject to judicial review and the courts.

4. What Is the Role of Judicial Review When Does the UK Government Accept Significant Legal Risk?

Judicial review provides an important constitutional mechanism through which courts can examine the lawfulness of decisions made by ministers and public authorities. Where a government decision exceeds lawful powers or breaches applicable legal principles, the courts may grant an appropriate remedy. The government’s acceptance of legal risk does not prevent a court from independently determining legality.

5. When Does Legitimate UK Government Legal Risk Become Executive Overreach?

There is no simple percentage at which legal risk automatically becomes unlawful. The critical questions include whether the government has genuine legal authority, whether its interpretation is genuinely tenable, what existing case law says, whether fundamental rights are affected, whether Parliament’s intention is being respected, and whether less legally risky alternatives exist. The central UK constitutional law question is therefore where legitimate ministerial discretion ends and unlawful executive action begins.

Key Takeaways

Key Issue	Explanation
UK government legal risk	The revised UK Government legal-risk guidance allows ministers greater scope to accept legal uncertainty when making policy decisions, provided there is a genuinely “tenable legal argument” supporting the proposed action.
A tenable argument is not a guarantee of legality.	A legally arguable position does not mean that a court will ultimately agree with the government. Ministers remain subject to the law and to judicial scrutiny.
Ministers may accept litigation risk.	The guidance recognizes that elected ministers may have to make difficult decisions where there is a significant possibility of a successful judicial review.
Courts remain the final arbiters of legality.	Government legal advice does not replace a judicial decision. Where executive action is challenged, courts can independently determine whether the government acted within its lawful powers.
Rule of law remains the constitutional boundary.	Accepting legal risk is different from knowingly disregarding a clear legal obligation. The government cannot treat a “tenable legal argument” as a license to ignore legislation or binding legal principles.
Probability alone does not determine legality.	Whether a policy has a 60%, 70%, or 90% chance of losing in court does not itself determine whether the action is lawful. The critical question is whether the government has lawful authority and has exercised it properly.
Fundamental rights require greater caution.	Legal-risk decisions affecting liberty, privacy, property, immigration, equality, or other fundamental rights raise particularly serious constitutional concerns.
Irreversible harm matters.	Where an unlawful decision could cause serious harm before judicial review is completed, accepting substantial legal risk becomes considerably more constitutionally problematic.
Independent legal advice is essential.	Government lawyers must provide candid and professionally independent advice rather than simply searching for arguments that enable a preferred political policy.
The central constitutional question	The UK’s new approach raises a fundamental issue—when does legitimate ministerial acceptance of legal risk become an unacceptable willingness to transfer the burden of determining legality from the government to the courts?

Summary

The UK government may accept genuine legal uncertainty, but a “tenable legal argument” cannot become a substitute for lawful executive authority or a license to disregard the rule of law.

Disclaimer

This article is intended for academic and public legal discussion. It is not legal advice and should not be treated as a substitute for advice on any particular matter.

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