Following the return of Parliament from its summer recess on 1 September 2026, with a new Prime Minister in place, the government has been busy setting out a new direction on its approach to legal risk.

First, on 7 September, HM Treasury published a letter to ministers regarding “the simplification and agency of government”. Attributed jointly to the Chancellor, First Secretary of State and Attorney General, the letter takes direct aim at “consultation culture”, excessive ministerial aversion to legal risk, and a judicial review system characterised as “out of balance”.

Shortly afterwards, Ellie Reeves, the Attorney General, published an updated and revised version of the risk guidance for government lawyers. In her statement, the Attorney General described the revised Guidance as “part of building a more agile state”. The message is clear: government should feel more empowered to get on with decision-making without being unduly constrained by public law.

This raises the question: has public law genuinely been holding government back from getting things done?

We have previously commented on the rise in the number of judicial review cases brought over the last ten years. In government, the most frequent defendant is DEFRA, with DESNZ and the DfT also commonly involved. Of the regulators, Ofgem and then Ofwat are most often subject to judicial review proceedings. 

These are, of course, just the bare statistics. Interpreting what they mean is far more difficult. At one end of the spectrum, they could indicate a pro-challenger framework that needs to be rebalanced if government is to deliver on its democratic mandate. At the other end, they may simply reflect a government that is taking more decisions, including those that might previously have been made at EU level, and is more interventionist in relevant areas. (The Scottish Parliament's recently announced consultation on proposed supermarket price caps is arguably an example of a wider trend also seen in Westminster.) Challenges may also arise where there are genuine weaknesses in the decision-making process, or where unintended consequences have not been properly considered. In such circumstances, judicial review serves as an important check and balance – see our earlier post on the importance of legal challenges (or at least the threat of them) for an effective subsidy control regime, which protects competition and prevents public money being wasted.

Notwithstanding this, the letter very clearly sets out government’s intentions to further limit the ability of possible challengers to apply for judicial review for “all nationally significant infrastructure projects” across a wider range of sectors, beyond just energy. Transport and water infrastructure are identified as key beneficiaries of the plans. Additionally, while the Guidance applies to central government lawyers, its implications may reach much further. It has the potential to influence a wide range of public bodies and regulators. Whether the Guidance and the accompanying political messaging embolden regulators to take riskier decisions remains to be seen, but businesses operating in regulated sectors (and their investors) should be watching closely.