Upper Tribunal confirms broad scope of legal advice privilege

A recent Upper Tribunal decision has clarified the scope of legal advice privilege under the Freedom of Information Act 2000 (FOIA), holding that a public authority can refuse to confirm or deny whether legally privileged information is held where doing so would reveal a clue as to the substance of the advice sought. The decision in Cabinet Office v The Information Commissioner and Peagram [2026] UKUT 140 (AAC), is significant for public authorities and anyone engaging with the FOIA regime, as well as having read across more generally in relation to the need to take a broad approach to the protection of legal advice privilege. 

Background

In March 2020, the then-prime minister announced the first Covid-19 lockdown. In December 2020, a member of the public, Mr Peagram, submitted a FOIA request to the Cabinet Office asking, among other things: 

1. whether the prime minister had sought legal advice on the lawfulness of the lockdown; and
    
2. if so, for copies of the request and advice.

The Cabinet Office refused to confirm or deny whether it held the requested information, relying on section 42(2) of FOIA, which is an exemption to the duty to confirm or deny if doing so would involve the disclosure of legally privileged information. The Information Commissioner disagreed, contending that merely confirming whether advice had been sought would not reveal the substance of that advice. The First-tier Tribunal (FTT) upheld the Commissioner's position. 

Decision

The narrow approach was an error of law

The Upper Tribunal found that the FTT had erred in law by taking too restrictive a view of what legal advice privilege protects. The Upper Tribunal noted several specific missteps.

Firstly, the FTT had wrongly characterised the request as being about whether legal advice had been sought about what the prime minister was to say in his televised speech on 23 March 2020. In fact, the request asked specifically about advice on the lawfulness of the lockdown measures – a materially different and more specific question. 

Secondly, the FTT had concluded that the word “lawfulness” added nothing to the request, on the basis that any request for advice from a lawyer is necessarily for advice about whether something is lawful. The Upper Tribunal rejected this, noting that legal advice privilege extends well beyond questions of legality to include advice on what should “prudently and sensibly be done in the relevant legal context”. Seeking advice specifically about the lawfulness of particular lockdown measures was therefore not the same as simply seeking legal advice in general terms. 

The inference principle applied

The “inference principle” is an established rule that privilege extends to information that would give a clue as to, or betray the trend of, the legal advice given. 

The Upper Tribunal held that the FTT failed to consider whether confirming the prime minister sought advice on the lawfulness of the specific lockdown measures would “give a clue” as to the content of the advice. Applying the broad approach required by case law, the Upper Tribunal concluded that it plainly would. Confirming that advice was sought about whether the lockdown measures fell within the government's legal powers would, at least to a limited extent, reveal the subject and direction of the privileged communications. 

The Upper Tribunal emphasised that even limited disclosure of legal advice privilege must be “jealously guarded against”. The FTT had correctly cited Brown v Bennett (Wasted Costs) (No 2) [2002] Lloyd’s Rep. P.N. 242 as authority that a party could refuse to answer questions where doing so would reveal (even to a very limited extent) the privileged contents of instructions or briefs. 

A correction of the textbook position

The Upper Tribunal also addressed a passage in the leading practitioner text Passmore on Privilege (paragraph 2-259 Colin Passmore, 2024) which has been raised in argument. The passage in question stated that references to the obtaining of legal advice “on a given subject matter” are not privileged. The Upper Tribunal confirmed that the underlying case, USP Strategies Plc v London General Holdings Limited [2004] EWHC 373 Ch, was decided on its facts and did not establish a general principle that referring to the subject matter of advice can never attract privilege.

Decision

The Upper Tribunal set aside the FTT's decision and, redeciding the preliminary issue, held that section 42(2) of FOIA was engaged. The Cabinet Office was entitled to neither confirm nor deny whether it held the requested information. 

Comment

This decision is a helpful clarification of how legal advice privilege operates in the FOIA context and beyond. There are two key practical takeaways.

First, the decision confirms that the exemption under section 42(2) FOIA can apply in respect of requests for whether advice was sought. Where a FOIA request is framed in sufficiently specific terms – identifying a particular client, a particular subject and a particular legal question – confirming or denying whether information is held may itself reveal enough about the substance of legally privileged communications to engage the exemption. Public authorities should carefully analyse the specificity of each request when considering whether section 42(2) FOIA applies.

Second, the decision underlines that courts and tribunals must apply legal advice privilege broadly, in line with the established case law from Balabel v Air India [1988] 1 Ch. 317, Three Rivers District Council v The Governor and Company of the Bank of England (No. 6) [2004] UKHL 48 and R (Jet2.com Ltd) v Civil Aviation Authority and Law Society [2020] EWCA Civ 35. The privilege protects not just the advice itself but the entire continuum of communications between a client and their lawyer, including requests for advice and the instructions underpinning them. Organisations responding to FOIA requests (or, indeed, to disclosure obligations more generally) should exercise caution when a request includes or comprises a request for the subject matter of legal advice. Where the subject matter is specific enough to give a clue as to the substance of the advice, then legal advice privilege is likely to apply.

For further information, please email the authors or your usual CMS contact.

This article was co-authored by Alice Robson, Trainee Solicitor at CMS.