Upper Tribunal clarifies scope of legal advice privilege in UK lockdown case

The Upper Tribunal has ruled in The Cabinet Office v The Information Commissioner & Anor [2026] that legal advice privilege can apply to the fact that legal advice has been sought on a specific topic: a decision that has significant relevance for those engaged in disclosure exercises in litigation, regulatory investigations and subject access requests.

FOIA challenge

On 23 March 2020, the prime minister, Boris Johnson, announced the first national lockdown in response to the Covid-19 pandemic with the now-familiar instruction "you must stay at home". In December 2020, a member of the public, Mr Peagram, submitted a Freedom of Information Act (FOIA) request to the Cabinet Office asking, among other things, whether the prime minister had sought legal advice on the lawfulness of the lockdown declaration.

In response, the Cabinet Office refused to confirm or deny whether it held the requested information, relying on section 42(2) of the FOIA, which provides an exemption to the obligation on a public authority to confirm or deny whether it holds information where a response would itself involve the disclosure of privileged information.

Mr Peagram complained to the Information Commissioner (IC) under section 50 of the FOIA, arguing there was a strong public interest in knowing whether "the PM put 60 million people under house arrest without legal authority." The IC decided that the Cabinet Office was not entitled to rely on section 42(2). The Cabinet Office appealed to the First-Tier Tribunal (FTT). The FTT agreed with the IC that, if the prime minister had received legal advice relating 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).

The UT's decision

Judge Wright allowed the appeal, finding that the Cabinet Office was entitled to rely on section 42(2) and that the FTT had erred in law by taking too narrow an approach to legal advice privilege. Judge Wright referred to two key authorities in the decision.

First, the Court of Appeal in R(Jet2.com Ltd) v Civil Aviation Authority [2020] EWCA Civ 35 confirmed that legal advice privilege and the continuum of communications between lawyer and client must be construed broadly and not restrictively. The continuum covers the request or instructions to the lawyer seeking advice, as well as the advice given.

Second, the High Court in Edwardian Group [2017] EWHC 2805 (Ch) established the "inference principle": this extends legal advice privilege to documents where the information gives rise to an inference with "a definite and reasonable foundation" as to the substance of the legal advice; although the inference does not need to be precise or granular. Documents that "give a clue" as to the legal advice given or that betray "the trend of the legal advice" will also be privileged.

Applying these principles, the tribunal decided that confirming whether the prime minister had sought advice on the lawfulness of the lockdown measures would "give a clue" as to the content of the advice provided. The tribunal drew the relevant test from Brown v Bennett (Wasted Costs) (No 2) [2002] Lloyds Rep. P.N. 242, while bearing in mind the need to construe legal advice privilege broadly. The tribunal held that the relevant test is whether disclosure would reveal, even to a very limited extent, the content of the instructions or the advice. In this case, owing to the specificity of the FOI request, it necessarily would. 

Clarification of existing law

This decision is generally consistent with existing law. It was common ground between the parties that the mere fact of having sought legal advice would not, in and of itself, come within section 42(2) of FOIA. This case, however, sheds some light on a more difficult question: how specific a topic for legal advice needs to be before a confirmation that legal advice has been sought on that topic is, in itself, privileged.

The UT illustrated its position on this point with the example of a celebrity spotted by a journalist leaving a solicitor's office. The mere fact that the celebrity had consulted a solicitor would not, of itself, attract legal advice privilege. If, however, the journalist asked whether the celebrity had been seeking advice on divorcing their spouse, the celebrity would be entitled to invoke legal advice privilege in response.

The tribunal then drew a distinction between two hypothetical scenarios involving the prime minister. The first concerned whether he had sought advice on what to say in his television address on 23 March 2020 or advice on the lockdown announced that day. The second concerned a specific request for legal advice on whether the proposed lockdown measures fell within the government's powers. In the former scenario, the tribunal considered that the mere fact of having sought advice on those broad topics may not be privileged. In the latter, the question was sufficiently specific that the fact of having sought legal advice on it would itself attract privilege.

Osborne Clarke comment

This ruling is a welcome and significant clarification on the scope of legal advice privilege. It has immediate relevance for those engaged in disclosure exercises, whether in litigation, regulatory investigations or subject access requests. It confirms that the fact of obtaining legal advice on a specific topic can itself attract privilege: a development that gives those involved in commercial disputes more concrete guidance on which to conduct privilege reviews, assert protection and respond to challenges.

That said, some ambiguity remains as to where precisely the boundary lies. Analysing the distinction between advice that is sufficiently specific to warrant protection and that which is too general to do so will inevitably turn on the facts.

Sarah Davies, a trainee solicitor at Osborne Clarke, contributed to this Insight.