Upper Tribunal Finds Privilege Applied To Whether Boris Johnson Sought Legal Advice On The Lawfulness Of The Covid-19 Lockdown

The decision shows that the question of whether legal advice was taken on a specific topic may be protected by privilege, even if the substance of the advice isn't revealed 

In a recent decision, the Upper Tribunal held that the Cabinet Office was entitled to refuse to confirm or deny whether it held information requested by a member of the public under the Freedom of Information Act 2000 (FOIA), as to do so would reveal privileged information – namely, whether the then Prime Minister, Boris Johnson, had sought legal advice on the lawfulness of the Covid-19 lockdown announced on 23 March 2020: The Cabinet Office v The Information Commissioner [2026] UKUT 140 (AAC).

Although the decision arose in the context of FOIA, it is of more general application. It illustrates that, while the mere fact of obtaining legal advice is not privileged, the fact of obtaining legal advice on a specific topic can attract privilege. This is consistent with previous authority, such as FSCS v Abbey National [2007] EWHC 2868 (Ch) in which the High Court held that privilege applied to the extent that a document identified the "narrow questions" on which advice had been obtained.

The FSCS decision did not, however, assist in identifying how "narrow" the questions had to be before legal advice privilege would attach to the fact of taking legal advice on them. The present case sheds some light on that point. It contrasts:

• on the one hand, a (hypothetical) request by the Prime Minister for legal advice about what to say in his television address on 23 March 2020 or advice generally on the lockdown announced – in which case, the Upper Tribunal says, the mere fact of taking such advice may not have been privileged;
• on the other hand, a request for legal advice on the specific question of whether the proposed lockdown measures fell within the Government's powers – where the Upper Tribunal was satisfied that the fact of taking such advice was privileged.

It is obvious, however, that some room for argument is likely to remain as to where the boundary lies in a given scenario.

Background

In December 2020, a member of the public (Mr Peagram) submitted a FOIA request to the Cabinet Office asking (in relevant part) whether Boris Johnson had sought legal advice on the lawfulness of his lockdown declaration on 23 March 2020.

The Cabinet Office refused to confirm or deny whether it held the requested information, relying on s.42(2) of FOIA. That section provides a carve-out to the duty on a public authority to state whether it holds the information specified in a FOIA request where compliance with that duty would involve the disclosure of privileged information.

Mr Peagram complained to the Information Commissioner, which held that the Cabinet Office had failed to demonstrate that issuing a confirmation or denial would, in itself, disclose privileged information, and therefore it could not rely on s.42(2). The Cabinet Office appealed to the First-tier Tribunal (FTT).

The FTT agreed with the Information Commissioner. It held, as a preliminary issue, that – on the hypothetical assumption that the Prime Minister had sought legal advice as to the lawfulness of the lockdown – a confirmation or denial in response to the FOIA request would not have disclosed privileged information. The Cabinet Office appealed to the Upper Tribunal (UT).

Decision

The UT (Judge Wright) allowed the appeal, finding that the FTT had made an error of law and that the Cabinet Office was entitled to rely on s.42(2) to refuse to confirm or deny whether it held the requested information.

After a brief review of the authorities on legal advice privilege, in which it noted that legal advice privilege covers the "continuum" of communications between lawyer and client that aims to keep the lawyer information so that legal advice may be given as required, the UT set out two "key takeaways", namely that:

• legal advice privilege and the continuum of communications must be applied broadly and not restrictively or on a "nit-picking" basis, given the underlying rationale of allowing the client and lawyer to be "unencumbered in the exchange of information when advice is being sought and given"; and
• the continuum covers the request or instructions to the lawyer seeking advice as well as the advice given.

The UT further noted that legal advice privilege applies not only to the lawyer/client communications themselves, but also to evidence of the content of the communications – including documents from which the substance of the legal advice can be inferred, as confirmed by Re Edwardian [2016] EWHC 3161 (Ch), considered here. (Note that on this point Re Edwardian declined to follow FSCS, which had held that inference was not sufficient for these purposes, but that does not affect the other aspect of the FSCS decision referred to above.)

The UT referred to a passage from leading privilege textbook Passmore on Privilege which states, with reference to USP Strategies [2004] EWHC 373 (Ch), that references to the obtaining of legal advice on a given subject matter are not privileged (unless those references evidence the content of the advice). The UT found that this statement is wrong, and is not supported by USP Strategies.

The UT accepted, as was agreed by the parties, that a mere confirmation that legal advice was sought would not be covered by privilege. However, giving the example of a well-known person who has sought advice from a lawyer about separating from their partner and has been spotted leaving a solicitors firm, the UT contrasted the question of whether they had been getting legal advice from the solicitor (which would not be privileged) with the question of whether they had been asking for advice about a legal separation (which would be privileged).

Applying the broad protection afforded by legal advice privilege, the UT held that the question of whether the Prime Minister had sought legal advice on the lawfulness of the lockdown announced on 23 March 2020 was a "sufficiently specific request for legal advice" as to attract privilege. The FTT's approach had been too narrow, and failed to consider the hypothetical question as a whole. The UT commented:

"The issue was not simply whether the Prime Minister had sought advice about what to say in his television address on 23 March 2020 or advice on the lockdown he announced that day. If that was the topic or topics on which the Prime Minister (hypothetically) sought advice, the mere fact he had done so may not have been privileged. That, however, was not the whole extent of the hypothetical question which the FTT was being asked to answer."

As the UT explained, the hypothetical request for legal advice was about the legality of the measures imposed by the lockdown – ie whether those particular measures fell within the Government's legal powers. Asking that particular question was part of the confidential communications between the Prime Minister and his lawyers on that issue, and would have "revealed or given a clue as to what the advice was about".

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