“Legal advice on pre-regulations lockdown of 23/03/20: I make the following request for disclosure regarding the Prime Minister's address to the nation on 23/03/20 (archived at https://www.gov.uk/government/speeches/pmaddress-to-the-nation-on coronavirus-23-march-2020). I request: (1) any discussion of whether to seek legal advice on the lawfulness of the PM's lockdown declaration of 23/03/20, (2) whether the PM sought the same, and (3) if so, such request and advice.”
“2. the Cabinet Office has failed to demonstrate that issuing a confirmation or a denial would, in itself, disclose information to which legal professional privilege could be maintained and is therefore not entitled to rely on section 42(2) of FOIA… 3. The Commissioner requires the Cabinet Office to take the following steps to ensure compliance with the legislation. • Confirm or deny whether it holds any information falling within the scope of the request. • To the extent that any information is held, either disclose that information or issue a refusal notice that complies with section 17 of FOIA..”
“15. It seems reasonably clear to the Commissioner that if any information was held by the Cabinet Office it would be likely to attract legal privilege because it must, by definition, relate to communications between a client (the government) and their legal adviser for the dominant purpose of seeking or imparting legal advice on the actions the government was about to take. Any information that was not legal advice, or did not relate to the particular action, would not fall within the scope of the request. 16. However, it is not sufficient for hypothetical information to be covered by privilege. In order for the Cabinet Office to demonstrate that it is entitled to rely on this exemption to neither confirm nor deny whether it holds information, it must demonstrate that just confirming (or denying) that information was held would, in itself, disclose legally privileged information. 17. The Commissioner’s guidance on section 42 makes clear that the mere fact that a public authority has sought advice, or that advice has been provided, does not, on its own, disclose privileged information. In order to engage the exemption, a confirmation or a denial must disclose something about the substance of the actual advice that was provided. 1 18. The guidance shows an example contrasting two requests, for ostensibly the same recorded information, that have been worded differently. In request A, the requester asks for: “a copy of any legal advice you have obtained that would allow you to sell the kitchens of Borset High School to a private catering company.”
“a copy of any legal advice you have obtained about selling the kitchens of Borset High School to a private catering company.” 19. The guidance goes on to explain that the public authority receiving request A would probably be entitled to rely on section 42(2) to neither confirm nor deny holding any information. Confirming that information was held would not only reveal that advice had been sought, but would also reveal the content of any legal advice (ie. it would reveal whether the sale was, or was not, legal - because any advice showing that the sale wasn’t legal would not fall within the scope of the request). By contrast, the public authority would not be able to refuse to confirm or deny holding information within the scope of request B because providing a confirmation or a denial would only reveal the fact that legal advice had been provided. It would not reveal the substance of that advice. 20. In his letter of21 January 2022 , the Commissioner noted that the request did not seek only legal advice that confirmed that a lockdown was lawful. It only sought legal advice relating to “the lawfulness” of the action. He asked the Cabinet Office to explain why issuing a confirmation or a denial would involve disclosure of privileged information….. 22. In the Commissioner’s view, the Cabinet Office has failed to interpret the request properly as it has failed to distinguish between a request seeking legal advice on whether a particular action is “lawful” and one seeking legal advice on the “lawfulness” of a particular action. Those two words may be similar, but they are not the same. 23. “Lawfulness” implies a spectrum of different positions ranging from actions that will always be lawful to actions that will never be lawful. In between there will be a whole range of nuances reflecting the particular circumstances or particular processes that have been or must be followed for an activity to be lawful. However what’s important is that it is not a binary distinction. 24. The Commissioner is therefore of the view that 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. 25. Whilst at least some of the information the Cabinet Office may hold is likely to engage section 42(1) of FOIA, the Commissioner does not consider that the Cabinet Office is entitled to rely on section 42(2) of FOIA to refuse to confirm or deny that it holds information.” “a copy of any legal advice you have obtained that would allow you to sell the kitchens of Borset High School to a private catering company.” “a copy of any legal advice you have obtained about selling the kitchens of Borset High School to a private catering company.”
“i. In early 2020, the Covid-19 pandemic spread in the UK. The Government encouraged people to reduce social contact. ii. On23 March 2020 , the Prime Minister, Boris Johnson MP, gave a televised address in which he announced the imposition of legal restrictions that comprised the first Covid-19 lockdown in England. The text of that address is published here: https://www.gov.uk/government/speeches/pm-address to-the-nation-on-coronavirus-23-march-2020. iii. Those legal restrictions were set down in theHealth Protection (Coronavirus, Restrictions) (England) Regulations 2020 that came into force at 1pm on26 March 2020 . iv. On17 December 2020 , the Cabinet Office received the FOIA request at issue in this appeal. That request was for: “(1) any discussion of whether to seek legal advice on the lawfulness of the PM's lockdown declaration of 23/03/20; (2) whether the PM sought the same, and (3) if so, such request and advice.” v. On20 January 2021 , the Cabinet Office provided its response to that request. The Cabinet Office relied on sections 42(2) and 35(3) FOIA in refusing to confirm or deny whether it held information within the scope of its request. It maintained that position upon internal review. vi. In its grounds of appeal, the Cabinet Office confirmed that it held no information within the scope of part 1 of the request. It maintained that it was entitled to adopt a Neither Confirm Nor Deny (NCND) position in response to parts 2 and 3 of the request, by virtue of sections 42(2) and/or 35(3) FOIA. vii. The Information Commissioner opposes the appeal.”
“(1) On the hypothesis that the Prime Minister sought legal advice on the lawfulness of the lockdown announced on23 March 2020 , would confirmation of that fact in response to the FOIA request of17 December 2020 have revealed information to which legal advice privilege applied? (2) If so, was section 42(2) FOIA engaged as regards parts 2 and 3 of that FOIA request?”
“(i) On the hypothesis that the Prime Minister sought legal advice on the lawfulness of the lockdown announced on23 March 2020 , confirmation of that fact in response to theFreedom of Information Act 2000 (FOIA) request of17 December 2020 would not have revealed information to which legal advice privilege applied. (ii)Section 42(2) FOIA is not engaged as regards parts 2 & 3 of that FOIA request.”
“Appeal against notices served under Part IV. 57.-(1) Where a decision notice has been served, the complainant or the public authority may appeal to the Tribunal against the notice. Determination of appeals. 58.-(1) If on an appeal under section 57 the Tribunal considers— (a) that the notice against which the appeal is brought is not in accordance with the law, or (b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal. (2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.”
“It may be possible to establish that the judge was plainly wrong or that there has been a significant error of principle; but the circumstances in which an effective challenge may be mounted to an evaluative decision are not limited to such cases. Many of the important authorities in this area were reviewed by the Court of Appeal in In re Sprintroom Ltd[2019] EWCA Civ 932 ;[2019] BCC 1031 , at paras 72–76…. on a challenge to an evaluative decision of a first instance judge, the appeal court does not carry out the balancing exercise afresh but must ask whether the decision of the judge was wrong by reason of an identifiable flaw in the judge's treatment of the question to be decided, such as a gap in logic, a lack of consistency, or a failure to take into account some material factor, which undermines the cogency of the conclusion.”
“For centuries the view of the common law has been that the proper administration of justice depends on those who seek legal advice having the assurance that what is said between them and their lawyer will always remain private unless they choose to reveal it. Effective legal advice requires that the adviser be in possession of the full and unvarnished facts, which may not be provided if the client has no guarantee as to the sanctity of their discourse. At common law this absolute assurance extends to material prepared for or in contemplation of litigation.”
“a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.”
“….a fundamental human right long established in the common law. It is a necessary corollary of the right of any person to obtain skilled advice about the law. Such advice cannot be effectively obtained unless the client is able to put all the facts before the adviser without fear that they may afterwards be disclosed and used to his prejudice.”
“…that in the complex world in which we live there are a multitude of reasons why individuals, whether humble or powerful, or corporations, whether large or small, may need to seek the advice or assistance of lawyers in connection with their affairs; they recognise that the seeking and giving of this advice so that the clients may achieve an orderly arrangement of their affairs is strongly in the public interest; they recognise that in order for the advice to bring about that desirable result it is essential that the full and complete facts are placed before the lawyers who are to give it; and they recognise that unless the clients can be assured that what they tell their lawyers will not be disclosed by the lawyers without their (the clients') consent, there will be cases in which the requisite candour will be absent. It is obviously true that in very many cases clients would have no inhibitions in providing their lawyers with all the facts and information the lawyers might need whether or not there were the absolute assurance of non-disclosure that the present law of privilege provides. But the dicta to which I have referred all have in common the idea that it is necessary in our society, a society in which the restraining and controlling framework is built upon a belief in the rule of law, that communications between clients and lawyers, whereby the clients are hoping for the assistance of the lawyers' legal skills in the management of their (the clients') affairs, should be secure against the possibility of any scrutiny from others, whether the police, the executive, business competitors, inquisitive busybodies or anyone else…”
“Although originally confined to advice regarding litigation, the privilege was extended to non-litigious business. Nevertheless, despite that extension, the purpose and scope of the privilege is still to enable legal advice to be sought and given in confidence. In my judgment, therefore, the test is whether the communication or other document was made confidentially for the purposes of legal advice. Those purposes have to be construed broadly. Privilege obviously attaches to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice. But it does not follow that all other communications between them lack privilege. In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required or appropriate on matters great or small at various stages. There will be a continuum of communication and meetings between the solicitor and client. The negotiations for a lease such as occurred in the present case are only one example. Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach. A letter from the client containing information may end with such words as "please advise me what I should do." But, even if it does not, there will usually be implied in the relationship an overall expectation that the solicitor will at each stage, whether asked specifically or not, tender appropriate advice. Moreover, legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context. By contrast, the formulation adopted by Judge Paul Baker and quoted earlier in this judgment is in my view too restrictive. It suggests that a communication only enjoys privilege if it specifically seeks or conveys advice. If it does so, it is privileged, notwithstanding it may also contain "narratives of facts or other statements which in themselves would not be protected." However, the second half of the judge's formulation implies that all documents recording information or transactions with or without instructions or recording meetings lack C privilege if they do not specifically contain or seek advice…. In my judgment that formulation is too narrow. As indicated, whether such documents are privileged or not must depend on whether they are part of that necessary exchange of information of which the object is the giving of legal advice as and when appropriate.”
“(i) Consideration of LAP has to be undertaken on the basis of particular documents, and not simply the brief or role of the relevant lawyer. (ii) However, where that brief or role is qua lawyer, because “legal advice” includes advice on the application of the law and the consideration of particular circumstances from a legal point of view, and a broad approach is also taken to “continuum of communications”, most communications to and from the client are likely to be set in a legal context and are likely to be privileged. Nevertheless, a particular communication may not be so—it may step outside the usual brief or role. (iii) Similarly, where the usual brief or role is not qua lawyer but (eg) as a commercial person, a particular document may still fall within the scope of LAP if it is specifically in a legal context and therefore, again, falls outside the usual brief or role. (iv) In considering whether a document is covered by LAP, the breadth of the concepts of legal advice and continuum of communications must be taken into account. (v) Although of course the context will be important, the court is unlikely to be persuaded by fine arguments as to whether a particular document or communication does fall outside legal advice, particularly as the legal and non-legal might be so intermingled that distinguishing the two and severance are for practical purposes impossible and it can be properly said that the dominant purpose of the document as a whole is giving or seeking legal advice. (vi) Where there is no such intermingling, and the legal and non-legal can be identified, then the document or communication can be severed: the parts covered by LAP will be non-disclosable (and redactable), and the rest will be disclosable… (vii) A communication to a lawyer may be covered by the privilege even if express legal advice is not sought: it is open to a client to keep his lawyer acquainted with the circumstances of a matter on the basis that the lawyer will provide legal advice as and when he considers it appropriate.”
“References to the obtaining of legal advice on a given subject matter are not privileged (albeit references which evidence the content of that advice are prima facie privileged).”
“30. Those conclusions can be summarised in relation to the redactions which have been made in the Defendants' disclosed documents is as follows: (a) References to the mere obtaining of legal advice are not privileged. (b) References to the obtaining of legal advice on a given subject matter are not privileged. (c) Level 3 references, which evidence the content of that advice, are prima facie privileged.”