Risk management
Published 9 June 2022
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This publication is available at https://www.gov.uk/government/publications/performance-overview/risk-management
GLD risks are aligned with the risk categories in HM Treasury’s risk management guidance – “The Orange Book”. The risks were agreed by the GLD Board in July 2020. We believe that our Primary Risk is that: “We cannot demonstrate the added value that GLD brings as a legal service for the benefit of government”.
GLD’s strategic risks are:
- We do not have an optimised performance and assurance system to monitor the implementation of our Strategy and supporting sub-strategies.
- We do not prepare for significant external events which have the potential to have an adverse impact on the delivery of legal services to our clients or achieving full cost recovery.
- We damage the confidence and trust of our clients and/or the judiciary, by not meeting their expectations or delivering on commitments given to them.
- We do not generate sufficient income to achieve full cost recovery and/or we breach one of our HM Treasury Control Totals.
- We do not attract, recruit and retain sufficient people to deliver the breadth and quality of legal services required by our clients.
- We have insufficient leadership capability to inspire and empower our people to deliver the required levels of service and/or our strategic aims.
- We do not make the most effective tools consistently available to our people across the whole department which are necessary to deliver the required standards of service to our clients.
- We do not keep pace with emerging threats, or there is a failure of compliance, which results in harm, or sanctions, or has an adverse impact on our ability to deliver legal services to our clients.
Our plans and mitigations in respect of these strategic risks are set out in the Governance Statement.
Case Study: Elan Cane vs Secretary of State for the Home Office
In December 2021 the Supreme Court delivered its judgment in this important matter engaging the rights of non-binary individuals. GLD acted for the Government throughout the preceding litigation in the High Court and Court of Appeal, which began in 2017.
The Appellant challenged HM Passport Office’s policy of requiring applicants for passports to declare their sex as either male or female, and that the passport bear either an “M” or “F” marker. It was argued by the Appellant that this breached their Article 8 (respect for private life and family) and 14 (non-discrimination) rights under the European Convention on Human Rights.
The Supreme Court upheld the Government’s position, finding that there is no positive obligation under the Human Rights Act to issue a passport with an “X” marker. The Court was required to conduct a balancing exercise between the rights of the Appellant and the wider public interest.
This included considering the extent to which an important facet of the Appellant’s identity was at stake; the potential detrimental impact on security and the introduction of significant costs to the state; how recognition of a non-gendered category of individuals in the context of passports only would undermine the coherence of the wider UK legal and administrative system; and the extent to which there is consensus on this issue among the member states of the Council of Europe.
The Court ultimately concluded that the government should be permitted a wide margin of appreciation to strike the right balance between these competing interests.