Six years ago it was a criminal offence to leave where you were living unless you had a reasonable excuse to do so. The country, and the world, was in the midst of the early days of the Covid-19 pandemic and these laws, introduced into each part of the United Kingdom, followed a television address at which the then Prime Minister, The Rt. Hon. Boris Johnson, made on 23 March 2020 in which he said that he gave a very simple instruction: “you must stay at home.” This then resulted in a series of measures that were relaxed and tightened over the coming months and years to combat the spread of Covid-19.

In December 2020 the Cabinet Office received a request for information relating to that 23 March 2020 announcement by the then Prime Minister; specifically the requester sought information about (i) any discussion about whether to seek legal advice on the lawfulness of the lockdown declaration of 23 March 2020; (ii) whether the then Prime Minister sought such advice; and (iii) if so, the request for advice and the advice provided.

The Cabinet Office responded in January 2021 refusing to confirm or deny whether it held any information falling within the scope of the request. This decision was later upheld by the Cabinet Office following an internal review and the requester then made a complaint to the Information Commissioner under section 50 of the Freedom of Information Act 2000 (FOIA). In his complaint to the Information Commissioner, the requester argued that there was a strong public interest in knowing whether “the PM put 60 million people under house arrest without legal authority.”

The Commissioner issued a decision on 19 May 2022 requiring the Cabinet Office to confirm or deny whether it held any information falling within the scope of the request and to the extent that it does hold any such information to disclose it or issue a refusal notice in terms of section 17 of FOIA.

The Cabinet Office partly complied with the Commissioner’s decision notice in that it answered the first part of the request (relating to discussions about whether to seek advice) but appealed the decision notice to the First-tier Tribunal (FtT) insofar as it related to the second and third parts of the request. The FtT held that, on the hypothesis that the Prime Minister, sought legal advice on the lawfulness of the lockdown announced on 23 March 2020, confirmation of that fact would not reveal information to which “legal advice privilege” applied and therefore that section 42(2) of FOIA was not engaged in relation to the second and third parts of the request.

The Cabinet Office appealed to the Upper Tribunal and last week, the Upper Tribunal published its decision in relation to that appeal. The Upper Tribunal allowed the Cabinet Office’s appeal holding that the First-tier Tribunal “erred materially in law” when it made its decision in respect of the Cabinet Office’s appeal to it. [66]

It may seem obvious to any lawyer that whether the Prime Minister had sought legal advice on the lawfulness of the lockdown announced on 23 March 2020 and, if so, the request for that advice and the advice itself would clearly fall within the ambit of legal privilege. The Upper Tribunal sets out the scope of privilege insofar as it relates to advice at [48] where it states:

“The general extent of legal advice privilege may be stated as covering confidential communications between a client and their lawyer in a relevant legal context where those communications are made for the dominant purpose of receiving or giving legal advice. This will include communications that form part of a “continuum” that aims to keep the lawyer and client informed so that legal advice may be given as required.”

The Upper Tribunal then went on to consider the judgments in Balabel v Air India and R (Jet 2.com Ltd) v Civil Aviation Authority and Law Society from which the following propositions were drawn by the Upper Tribunal (at [50]):

• That legal advice privilege and the continuum of communications must be applied broadly and not restrictively or on a nit-picking basis. And that broad approach is founded on the rationale of allowing a client and their lawyer to be unencumbered in the exchange of information when advice is being sought and given; and
• The continuum covers the request or instruction to the lawyer seeking advice as well as the advice given.

The Upper Tribunal considered that the FtT erred in failing to place “adequate weight on the need to take a broad approach to what may constitute legal advice privilege and failed to reason out adequately why answering the hypothetical question would not reveal information to which legal professional/advice privilege applied.” [57]

Having concluded that the FtT erred in law, the Upper Tribunal went on to remake the decision under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007. Unsurprisingly, given the terms of the Upper Tribunal’s consideration of the scope of legal advice privilege, the Upper Tribunal concluded that “the correct answer to the hypothetical question posed in the preliminary issue is that answering whether or not the Prime Minister had (on the hypothesis) sought legal advice on the lawfulness of lockdown announced on 23 March 2020, would have revealed information to which legal advice privilege applied.” [68] The Upper Tribunal decided that the Cabinet Office had been entitled to neither confirm nor deny whether it held any information falling within parts 2 and 3 of the requester’s request.

Comment

This decision of the Upper Tribunal follows hot on the heels of the Opinion of the Court of Session in Scottish Ministers v Scottish Information Commissioner (about which I wrote here). Once again there is confirmation of the importance of, and near impenetrability of, legal privilege. In the case before the Upper Tribunal the issue wasn’t whether advice which had been obtained should be released; rather, it was about whether the Cabinet Office should be required to even confirm or deny whether legal advice had been sought in the first place.

Both FOIA and the Freedom of Information (Scotland) Act 2002 have resulted in a situation where public authorities can be forced to disclose information which is subject to legal privilege in the public interest. The bar does seem to be a high one before a public authority will be required to disclose information that is subject to legal privilege (which can include whether it has even sought legal advice on a particular issue) and it is probably understandably so given the importance of legal professional privilege in the wider administration of justice. However, the statutory exemptions created through FOI law cannot simply be ignored and there will be situations where the public interest (properly understood) will demand the release of information subject to legal professional privilege.

_{Disclaimer: This article is for information purposes only and nothing in it should be taken as constituting legal advice.}