I have recently written about two different FOI appeals where the thorny issue of legal privilege arose. The first was an appeal to the Court of Session under the Freedom of Information (Scotland) Act 2002 and the second was an appeal to the Upper Tribunal in relation to a request made under the Freedom of Information Act 2000 (“FOIA”). Both of those cases served to highlight the near impenetrability of legal privilege. However, last week the First-tier Tribunal (FtT) issued a decision in which it refused an appeal by the Cabinet Office against a decision of the Information Commissioner ordering it to release information subject to legal privilege.  

Background and the Reuqest

On 5 December 2023 the requester made a request for information to the Cabinet Office requesting a copy of legal advice provided in or around March 2020 to ministers, including then then Cabinet Office Minister Lord Gove (as he now is), addressing the legislative basis on which the Government could or should order the first lockdown instituted in March 2020. In addition, Mr Kingsley requested related ancillary communications such as a record of any meeting in which the advice was provided to or discussed with ministers.

The request for information followed on from evidence that Lord Gove had given, on 28 November 2023, to the UK Covid-19 inquiry. The relevant passage of Lord Gove’s evidence is included within the FtT’s decision (at paragraph 6). The relevant passage of evidence came from a chapter considering why the Government proceeded under the Public Health (Control of Disease) Act 1984 and then the Coronavirus Act 2020 rather than the Civil Contingencies Act 2004. Lord Gove referred in his evidence to a debate had with government lawyers about whether the pandemic was unforeseen and that the general view was that the pandemic might not have met the threshold of having been unforeseen.

In his request for information, Mr Kingsly argued that privilege had been waived and therefore section 42 of FOIA could not apply. Mr Kingsly argued, in his initial request, that this was the case because Lord Gove had revealed the main substance or gist of the legal advice in question in a public forum and that had put “the content of the advice at issue by referencing it to explain the state of mind of key decision-makers at that time.”

The Cabinet Office replied to the request for information on 5 February 2024 confirming that it held the advice but applying section 42 to the content of the advice. The Cabinet Office also relied on section 35(1)(b) of FOIA as well. This refusal was upheld at internal review, and Mr Kingsly made a complaint to the Information Commissioner.

Information Commissioner’s Decision Notice

On 4 November 2024, the Information Commissioner issued a decision notice in which he concluded that privilege had not been waived and therefore section 42 of FOIA did apply; however, the Commissioner concluded that the public interest favoured disclosure.

Appeal to the First-tier Tribunal

The Cabinet Office appealed the Commissioner’s decision to the FtT under section 57 of FOIA. During the proceedings, the Cabinet office disclosed a redacted version of advice from the lawyers acting for the Department of Health and Social Care dated 15 March 2020.

Before the FtT there were two issues. The first related to the question of whether privilege had been waived. Mr Kingsly contended that it had while the Commissioner and the Cabinet Office contended that it had not. The second issue before the FtT was if privilege had not been waived does the public interest in maintaining the exemption outweigh the public interest in disclosing the withheld information.

Waiver of Privilege

The first issue was whether Lord Gove’s answer to the questions put to him at the Covid-19 Inquiry amounted to a waiver of privilege; this was logically the first issue to consider as if privilege had been waived then the exemption could not apply. More of the relevant chapter of evidence before the Inquiry is contained at [43]-[45] of the FtT’s decision.

The FtT divided its analysis of this issue into two separate questions. The first considered whether the concept of a waiver of privilege applied in the context of an Inquiry and, secondly, if so, whether the oral evidence of Lord Gove amounted to a waiver on the facts of the case.

In relation to the first of these two questions, the FtT held that “legal privilege is capable of being waived in evidence given before an Inquiry.” [49] The Cabinet Office had sought to distinguish between the adversarial nature of litigation, in which a party deploys evidence in order to gain an advantage over another party to the litigation, and the more inquisitorial nature of an inquiry where evidence is given in order to assist he inquiry and not to seek to gain an advantage over an opposing party. [51]

The FtT accepted that “cherry picking and fairness” were important considerations in relation to whether privilege has been waived through evidence given in proceedings which are adversarial; however, they do not operate as absolutes. Whether privilege has been waived in any context, the FtT considered, is an exercise which is acutely fact sensitive. The fact that Lord Gove’s evidence was given during proceedings which were inquisitorial, rather than adversarial, was relevant context for that assessment but was not determinative. [52]

Having concluded that it is possible to waive privilege through the giving of evidence to a statutory inquiry such as the Covid-19 Inquiry, the FtT turned to the question of whether Lord Gove had, in fact, waived privilege.

The argument advanced by the requester was that Lord Gove had revealed the main substance of the advice in his public evidence, had done so in a public forum and put the content of the advice at issue by referencing it to explain the state of mind of individuals who had been key decision-makers at the time. All of this, Mr Kingsly, argued amounted to a waiver of privilege by Lord Gove.

The Cabinet Office argued that a conclusion that the short statement of Lord Gove to the Covid-19 inquiry relied upon amounted to a waiver of privilege would be irrational. Lord Gove made no reference to legal advice and he substance of any legal advice had not, in fact, been revealed. The Cabinet office further argued that there had been no reliance by Lord Gove on the legal advice nor had there been any “cherry-picking”. The Cabinet office submitted, following a closed session during which the relevant advice was considered, that the contents of the legal advice supported the submissions on the issue of waiver.

The Commissioner argued that a passing reference, such as the one made by Lord Gove in his evidence to the inquiry, did not amount to waiver of privilege. The Commissioner contended that the context of an inquiry is different from an adversarial process and therefore there could be no unfairness or cherry-picking concerns. Lord Gove referred to a debate, but there was no indication as to whether this was an oral or written debate. Furthermore, Lord Gove did not refer to any reasoning that might have been provided in the legal advice.

The FtT concluded that, in his evidence, Lord Gove was not referring to either of the two pieces of legal advice at issue in the appeal. [59] Even if the FtT had been satisfied that Lord Gove had been referring to either or both of the pieces of advice at issue, it would have reached the conclusion that Lord Gove’s evidence did not reveal the substance or gist of the advice. [59] The FtT explained, at [59], that:

“In reaching this conclusion we have found that the exchange between Lord Gove and Counsel at the Inquiry related to the issue of why the Government did not use the CCA as opposed to the PHA or, later, the Coronavirus Act. This is plain from reading the whole of the exchange found at page 364 of the bundle, rather than just the few lines of the extract referred to in the Request. In this context, it is clear that the particular section of the exchange alighted upon by the parties, and being of most relevance, is referencing the threshold in the CCA for the passing of subordinate regulations. This is not a case in which the non-adversarial nature of Inquiries weighs materially in our analysis, as it may have done in other scenarios. This is not because there is no significance to the fact that the evidence was provided in inquisitorial rather than adversarial proceedings, or that Lord Gove was not seeking to ‘cherry-pick’ or advance a case, but rather, it is because the answer to the issue posed of the Tribunal can be swiftly identified by duly analysing the terms of the two pieces of legal advice, properly set in the context of the evidence given by Lord Gove.”

The FtT therefore concluded that there had been no waiver of privilege through Lord Gove’s evidence to the Covid-19 inquiry. [61]

Public interest balancing exercise

The FtT then went on to consider where the public interest balance rested in relation to withheld information and started with the factors in favour of maintaining the exemption. The FtT started by considering the inherent weight in the public interest in the non-disclosure of information to which privilege applies. At [70], the FtT stated:

“We, therefore, accept that the in-built public interest in non-disclosure of information otherwise protected by legal professional privilege carries significant weight, which will be considered in the balancing exercise. However, whilst in the common law context there is no requirement to engage in a balancing exercise once it is found that legal professional privilege is engaged, ostensibly because legal professional privilege is seen as the predominant public interest, this is not the position under FOIA. Parliament has chosen not to make section 42 an absolute exemption and, although significant weight must be accorded to the exemption, it must not be so heavy so as to effectively be elevated into an absolute exemption”

The FtT also had regard to the fact that the legal advice in question had been recently provided at the time of the request and remained live. At paragraph 77, the FtT stated:

“Having taken this into account we, nevertheless, attach little weight to the fact that the advice is recent and live. This was an advice produced in a matter of days very early on in the Pandemic. Furthermore, although the Legal Advice formed part of the material relating to discussions which led to such constitutionally significant political decisions, at the time of the CO’s response, most of the Coronavirus Act had expired and the restrictions in regulations made under the PHA had been repealed or revoked, with the last major update occurring in April 2022 – although we do also take cognisance of the fact that the CCA and PHA were, and are, still live pieces of legislation. Additionally, significant post-implementation learning had taken place between the date of the Legal Advice and the date of the CO’s response to Mr Kingsley. Even if there had been no subsequent learning, if the Legal Advice were to be disclosed to the public now, this would not remove it from the knowledge bank. No reason has been advanced as to why, in the event of a future emergency, the Government of the time could not draw upon this advice, if it were thought appropriate to do so, despite it having been disclosed to the world at large. Mr Hargreaves specifically accepted that this was so under cross-examination.”

Turning to the question of the so-called “chilling effect” that disclosure would have, the FtT attached “no material weight” to it. [84]

Turning to the public interest factors in favour of disclosure, the FtT stated that “it is difficult to imagine a more constitutionally significant act than the imposition on people’s lives imposed by the Covid restrictions. There can be no doubt as to the breadth of individual freedoms that this legislation impinged upon. There was, of course, also a significant financial cost the country as a consequence of the Pandemic lockdown measures.” [106]

The FtT continued by stating that the “value of disclosure lies in the opportunity it provides to the public to better understand the decision making process that took place regarding one of, if not the most, constitutionally significant acts in living memory.” [107]

The evidence of the Cabinet Office’s witness appears to have been of significance in the FtT’s conclusions. The FtT took the view that “the evidence given by Mr Hargreaves as to the role played by Parliament in the scrutiny, or lack of scrutiny, in the Regulations implemented pursuant to the PHA, does not operate at all to reduce the public interest in the debate as to why the CCA was not used as the appropriate legislative vehicle. Although not relevant to our conclusions in this appeal, we venture to suggest that anyone interested in that debate may, reading the terms of Mr Hargreaves evidence to this Tribunal, conclude that the evidence stokes the fire of the public debate, rather than helps extinguish it.” [112]

The Cabinet Office had sought to rely upon the explanations given by the Government as a factor that reduced the public interest in disclosure of the withheld information in this case. The FtT was not convinced. It stated:

“Contrary to the CO’s contention, we do not accept that, on the evidence before us, the ‘explanations’ relied upon by the CO weaken the public interest or value in transparency. Much of the evidence referred to relates to the implementation of the Coronavirus Act and not the initial decision to issue regulations under the PHA rather than the CCA. We note the ‘explanations’ also include reference to a severe risk of legal action if the CCA route were utilised, and to the need for the CCA to have been changed in order to make it usable. Insofar as the evidence impinges on the debate as to why the PHA was chosen as the relevant vehicle at the outset, rather than the CCA, we are entitled to take account of the fact that Lord Gove adopted, in his evidence to the Inquiry, a legal threshold that does not appear in the CCA. There is also an observation regarding the short life span of any CCA regulations, and reference to the CCA being designed to deal with unanticipated events. When this evidence is duly analysed in the round, we do not accept that it provides the necessary clarity of rationale for the Government’s decision making that would lead us to find that there should be reduced weight attached to the public interest factor of transparency that weighs in favour of disclosure. In addition, just because a debate cannot be authoritatively decided one way or another does not mean it without value – this is complex landscape and the Legal Advice assists with the debate.” [123]

The FtT was not persuaded that the fact that the Covid-19 inquiry was ongoing at the time of the request for information materially reduced the weight to be attached to the public interest in transparency and scrutiny of the government’s decision making. [130]

The FtT went on to state that: “[d]rawing all of this together, we do not accept the CO’s position that “[T]he main purpose that the public disclosure of the Legal Advice has already been served by alternative means that do not intrude upon the fundamentally important LPP rights”. We, further, do not accept that the features relied upon by the CO in this regard materially diminish the public interest in transparency, i.e. allowing the public to better understand the decision-making process that took place regarding one of, if not the most, constitutionally significant acts in living memory.” [132]

While it recognised the in-built public interest in withholding information to with legal professional privilege applied “commands significant weigh”, the First-Tier Tribunal had “no doubt that this is one of those rare cases where, in all the circumstances of the case and having undertaken the intensely fact sensitive evaluative judgment, the public interest in disclosing the information outweighs the public interest in maintaining the exemption.” [135] It found that the cumulative weight of the features it had identified in favour of disclosure as being very significant. [135]

Comment

As had been made clear by the Court of Session and the Upper Tribunal in the two recent cases that I have written about, there will be situations where the public interest in disclosure, while rare, will be stronger than the public interest in maintaining the confidentiality of legal advice. In this case the FtT undertook a careful balancing exercise and, by some margin it would seem, found that this was one of those rare cases in which the public interest in disclosure outweighed the public interest in maintaining the exemption.

The FtT’s decision was only given last week and so at the time of writing the time for the Cabinet Office to seek permission to appeal to the Upper Tribunal has not expired. It therefore remains possible that this case will proceed to the Upper Tribunal. However, such appeals can only be on a point of law and so the Cabinet Office would need to identify some arguable error of law on the part of the FtT rather than it simply disagree with the balancing exercise undertaken by the FtT in relation to the public interest.

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