Would the act of confirming or denying whether Boris Johnson sought legal advice on the lawfulness of his Covid-19 lockdown declaration of 23 March 2020 in itself consist of disclosure of legally privileged information?
“Yes”, said the Cabinet Office, in response to a Freedom of Information request.
“No”, said the Information Commissioner’s Office:
the Cabinet Office could confirm that it had sought legal advice (if it had in fact done so) without indicating whether that advice had concluded that the proposed action was or was not lawful. Therefore the Cabinet Office could confirm or deny that it had sought legal advice without revealing the substance of any advice provided and thus without revealing any information which would be covered by legal privilege
“No”, also said the First-tier tribunal:
confirmation that information is held and that the Prime Minister had sought advice would not disclose the substance of what advice was sought. Nor would it reveal whether any advice was given in response, still less what that advice was
“Yes”, now says the Upper Tribunal: the FTT (and the ICO) took too restrictive an approach to the concept of legal advice privilege:
Taking due account of the need to construe the protection afforded by legal advice privilege broadly, in my judgement to confirm whether the Prime Minister made a request for advice about the lawfulness of the lockdown announced on 23 March 2020 would to an extent reveal privileged information. The request was about the legality of the measures imposed by the lockdown of 23 March 2020. In other words, whether those particular measures (e.g., requiring people to stay at home or in wherever they were living on 23 March 2020, subject to certain exceptions) fell within the Government’s legal powers. Asking that particular question about the lawfulness of those particular measures was part of confidential communications between the Prime Minister and his lawyers on that issue, and to an extent would have revealed or given a clue as to the what the advice was about, namely whether the lockdown measures were lawfully authorised
Notable that the judge decides in his judgment that one of core textbooks – Passmore on Privilege – is wrong in stating, as a general principle, that “References to the obtaining of legal advice on a given subject matter are not
privileged”.
The Cabinet Office v 1) The Information Commissioner 2) Daryl Peagram: [2026] UKUT 140 (AAC)
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