The Cabinet Office v The Information Commissioner & Anor

This appeal is brought by the Cabinet Office (“CO”) against a decision of the Information Commissioner (“the Commissioner”) of 4 November 2024 (referenced IC-309680-Q9V0). The decision in this appeal is unanimous and is one to which all members of the panel have contributed.

The appeal concerns a request by Mr Kingsley for the disclosure of legal advice provided to the Government in March 2020, regarding social distancing measures and the closure of social venues in response to the Covid-19 pandemic (“the Pandemic”).

On 15 March 2020, the Department of Health and Social Care’s (“DHSC”) legal advisers provided legal advice on social distancing measures that could be instituted by the Government. CO legal advisers provided the Government with legal advice on the subject of mandatory closure of social venues on 20 March 2020. Although there are two separate pieces of legal advice relevant to this appeal, for the sake of convenience, in the decision we will refer to them as “the Legal Advice”.

On 5 December 2023, Mr Kingsley submitted the following request to the CO (“the Request”):

“…Please could you provide me with a copy of the legal advice provided in or around March 2020 to Government Ministers, including the then Cabinet Office Minister Rt Hon Michael Gove MP, which addressed the legislative basis on which the Government could or should order the first national Covid-related lockdown in late March 2020. If no such advice was ever provided in writing, please confirm this in your response.

Please also provide any closely related ancillary communications, including for example any record of a meeting in which that advice was provided to or discussed with Ministers, and any accompanying explanatory papers or presentations or other non-public source documents referenced therein which are pertinent to the legal advice.

The existence of advice from government lawyers on the question of whether the statutory threshold for exercising powers under the Civil Contingencies Act 2004 had been met was explicitly referenced by Mr Gove in his oral evidence to the UK Covid Inquiry on Tuesday 28 November (see page 112 of the official transcript of his evidence). Mr Gove revealed the main substance of that advice in his public evidence when he said, "And the general view was that, as I say, a terrorist attack, by definition, would be unforeseen but the gathering storm of a pandemic might not meet that threshold".

Though the Government may originally have sought to resist disclosure of that advice on the grounds that it is privileged advice (s.42, FOIA), by revealing the main substance or gist of that legal advice in a public forum, and moreover by putting the content of the advice at issue by referencing it to explain the state of mind of key decision-makers at that time, including himself, Mr Gove has waived legal professional privilege in that advice.

Even if privilege had not been waived, by discussing the substance and context of the advice at a public inquiry, on a topic of manifest material public interest (a legally significant aspect of a pivotal moment in recent national history, specifically raised by the lead counsel in a public inquiry into that period of history), Mr Gove would have put beyond doubt that the public interest in disclosing that advice outweighs any public interest in maintaining it as exempt information (s.2(2), FOIA). ...”

Given its necessity to the understanding of what is said below it is prudent at this stage to interpose the material details of Lord Gove’s (as he is now) evidence to the UK Covid-19 Inquiry (“the Inquiry”), as referenced in Mr Kingsley’s request for information. Lord Gove was the Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office at the time the Government were discussing pandemic response measures in March 2020, and he remained in those roles until September 2021.

The Inquiry was established to examine the UK’s response to, and impact of, the Pandemic. It began work on 22 June 2022. Lord Gove gave oral evidence to the Inquiry on 28 November 2023. Evidence was given in response to questions directed at why the Government did not use the CCA in response to the Pandemic, but instead used the Public Health (Control of Disease) Act 1984 (“the PHA”) and then, when it came into force, the Coronavirus Act 2020 (“the Coronavirus Act”):

“Q. There is also a provision in the Act, is there not, which requires the event, in respect of which one is passing the regulations, to be unforeseen?

A. Yes.

Q. So, in essence, a judgement call was taken that this was a step too far. It was the nuclear option, it had never been used, this was not the time to do it?

A. Precisely so. And the unforeseen element is, again, it's debatable, and we did have that debate with government lawyers, to what extent was the pandemic unforeseen? And the general view was that, as I say, a terrorist attack, by definition, would be unforeseen but the gathering storm of a pandemic might not meet that threshold.”

The CO responded to Mr Kingsley’s request on 5 February 2024 (“the Response”). In relation to the Legal Advice, it confirmed that it held the requested information but concluded that the section 42 exemption applied. Privilege had not been waived because whilst Lord Gove had “referred to the existence of the advice, the advice itself remains legally privileged”. The public interest was not in favour of disclosing the advice. The CO also relied upon section 35(1)(b) of the Freedom of Information Act 2000 (“FOIA”) at this juncture (Ministerial Communications), again concluding that the public interest favoured maintaining the exemption.

Mr Kingsley requested an internal review on 26 February 2024, averring that section 42 did not apply because privilege had been waived and, in any event, the public interest favoured disclosure. In relation to section 35(1)(b), Mr Kingsley did not contest that this applied to communications between Ministers but requested disclosure of relevant material that was not communication between Ministers.

By way of a response of the 14 May 2024, the CO maintained that privilege had not been waived and that the public interest did not favour disclosure. The review also explained that the CO had not identified any ‘closely related ancillary communications’ which were not exempt under section 35(1)(b) FOIA.

Mr Kingsley made a complaint to the Commissioner, disputing the CO’s reliance on section 42(1) FOIA, asserting that privilege had been waived and that the public interest favoured disclosure of the legal advice.

In a decision of 4 November 2024 (“the Decision Notice”), the Commissioner concluded that legal privilege had not been waived, and that the public interest favoured disclosure of the legal advice.

In relation to the ancillary advice, the Commissioner upheld the CO’s conclusion that there were no such communications that are disclosable under FOIA. Mr Kingsley did not appeal this finding, and the parties did not seek to persuade the Tribunal that it should give consideration to this aspect of the Decision Notice.

As a consequence of the above conclusions, the Commissioner required the CO to “provide [Mr Kingsley] with a copy of the information it has withheld on the basis of section 42(1) of FOIA” within 30 days of the date of the Decision Notice.

The CO now appeals this Decision Notice.

During the course of the Tribunal proceedings, the CO disclosed a redacted copy of the DHSC’s advice of 15 March 2020.

The issues to be determined by the Tribunal are:

The relevant provisions of FOIA are as follows:

“Section 1

General right of access to information held by public authorities.

(1)

Any person making a request for information to a public authority is entitled-

(a)

To be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b)

If that is the case, to have that information communicated to him.

...

Section 2

Effect of the exemptions in Part II

…

(3)

In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply if or to the extent that-

(a)

The information is exempt information by virtue of a provision conferring absolute exemption, or

(b)

In all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

Section 42

Legal professional privilege

(1)

Information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality of communications could be maintained in legal proceedings is exempt information.”

The list of absolute exemptions is contained in section 2(3) FOIA. That list does not contain section 42 and, therefore, section 42 is a qualified exemption, which means that it only applies if, in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information (s.2(2)(b)).

On appeal to the Tribunal, it must decide if the Commissioner’s Decision Notice is in accordance with the law (s.58 FOIA). The Tribunal exercises a full merits jurisdiction over the Commissioner’s judgment, including as to where the public interest balancing test is to be struck. It is for the Tribunal, if necessary, to restrike that balance afresh - see the decision of a three judge panel of the Upper Tribunal in IC v Malnick and ACOBA [2018] AACR 29, at paragraphs [45]-[46] and [90].

For the purposes of determining this appeal we have considered all of the material provided, whether or not specifically referred to in this judgment. The OPEN bundle consists of 710 pages, including the OPEN Grounds of Appeal, OPEN Response of the Commissioner, Mr Kingsley’s Reply, various correspondence and case management directions, and the OPEN Witness Statement of Roger Hargreaves - a senior civil servant and the Director of the COBR Directorate, a post he assumed in July 2022. From October 2020, Mr Hargreaves was the Director of the Civil Contingencies Secretariat within the CO. He has been a civil servant for 28 years. The CLOSED bundle includes the withheld Legal Advice, a confidential annex to the Decision Notice, CLOSED Grounds of Appeal and Response, the witness statement of Roger Hargreaves, and the CLOSED correspondence between the CO and the Commissioner.

The Tribunal was helpfully provided with an Authorities Bundle, and all parties provided a skeleton argument in advance of the hearing.

Further written material was provided on the second day of the hearing which consisted of the Civil Service Code, sections of the Inquiries Act 2005 and FOIA, extracts of the report on Modules 2, 2A, 2B and 2C from the Chair of the UK Covid-19 Inquiry, and the decision of the Court of Appeal in James Stanley Prest v The Secretary of State for Wales & The Welsh Water Authority 1983 WL 215478.

The Tribunal also considered the recent Upper Tribunal decision of Cabinet Office v Information Commissioner and Peagram [2026] UKUT 144 (AAC), which was promulgated after the hearing. We did not consider it necessary to seek further submissions from the parties in relation to this decision, the issues before this Tribunal being wholly different to those under consideration in Peagram.

The CO gave evidence through the OPEN and CLOSED witness statements of Roger Hargreaves. Mr Hargreaves also gave oral evidence in both OPEN and CLOSED session at the hearing.

Mr Hargreaves explained in his statement that one of the principal purposes of the COBR directorate is to ensure that Ministers and senior officials can make effective decisions during times of acute civil contingency or national security emergency. He did not work in the team at the time the Legal Advice was obtained but joined COBR in the autumn of 2020. During a crisis situation, COBR and the lead government department that owns the risk will seek advice from their departmental lawyers. Mr Hargreaves submits that he has extensive experience of the commission and use of legal advice in a wide variety of government contexts and understands the different contexts in which government uses legal advice. During 2002 to 2006, Mr Hargreaves led the team delivering the CCA.

In response to the increasing crisis of the Pandemic, a COBR meeting on 5 March 2020, co-chaired by the Prime Minister Boris Johnson and Cabinet Secretary Mark Sedwill, and a cross-governmental meeting on 6 March, discussed the need to develop policy options to delay the virus. On 7 March 2020, CCS Control commissioned policy advice from the DHSC on the potential impacts of the intervention options available, which was provided on the 15 March 2020. Various measures were implemented from 16 to 20 March 2020.

On 18 March 2020, SAGE advised that the agreed packages of non-pharmaceutical interventions would have a significant effect with good compliance rates, but additional measures would be needed if compliance rates were low. On 20 March 2020, COBR decided to implement measures for the mandatory closure of various social venues, such as pubs, restaurants, and gyms, as well as schools. CO legal advisers provided legal advice on the same date, in advance of the COBR meeting. The publicly available minutes of the COBR meeting record that the following discussion was made during a wider discussion: “the CCA could not be used as this is not an unforeseen event, and the PHA was recommended instead.”

The UK Government implemented mandatory non-pharmaceutical interventions through a bespoke bill, the Coronavirus Bill. The Coronavirus Act 2020 received Royal Assent on 25 March 2020. Thereafter, the UK Government’s response to the Pandemic evolved, and remained under constant review.

Mr Hargreaves explains that the provision of timely legal advice is a key way in which uncertainty is reduced. Decision makers need to know what options are legally permissible. Anything which inhibits the ability or confidence of Government to seek this advice at pace, such as fear that it might be disclosed – would lead to more uncertainty, worse decisions, and thus materially damage the Government’s ability to respond to crisis.

In relation to the public interest in disclosing the advice, Mr Hargreaves opines that the UK Government has publicly explained its decision not to employ secondary legislation-making powers under the CCA, for example parliamentary debate during the passage of the Coronavirus Bill and the Government’s response to various Committees and Inquiries, in particular, the Inquiry. There has already been significant scrutiny of the UK Government’s decision not to rely upon the CCA, including during the passage of the Coronavirus Bill in March 2020, as well as by various Parliamentary committees thereafter, and the Inquiry. Mr Hargreaves notes that it was open to the Inquiry to request any legal advice given to Government, but it chose not to. There has also been a comprehensive review of the CCA as a whole in 2022, to establish whether it achieves its aims.

The contention that the CCA should have been used to impose lockdown-type restrictions in place of the PHA was tested and rejected by the Court of Appeal in R. (on the application of Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605 (“Dolan”), in which the Court of Appeal concluded that whilst it may have been open to the Secretary of State to make the 2020 Regulations under the CCA, it does not follow that he was required to do so; nor that he is somehow prevented from using the powers which Parliament has conferred by the PHA. The Court of Appeal’s judgment was made when the issues were still live, 3 years prior to Mr Kingsley’s FOIA request. As such, Mr Hargreaves opines that the Commissioner’s submission that disclosure of the Legal Advice may help to inform debate about the adequacy of the powers conferred by the CCA, does not account for the ventilation of the matter before the Court of Appeal. The key issue - whether or not the PHA is available to respond to a situation such as a major pandemic, has been determined.

Passages in this OPEN witness statement were redacted. In unredacted form, this document formed Mr Hargreaves’ CLOSED witness statement. Further details of the evidence provided in the CLOSED witness statement are set out in the CLOSED Decision.

Mr Hargreaves also gave oral evidence to the Tribunal in both OPEN and CLOSED session. Under cross-examination in the OPEN session, Mr Hargreaves explained that his reading of the FOIA request was for advice relating to lockdowns, not advice specifically relating to Lord Gove’s evidence to the Inquiry. His understanding is that the Inquiry was looking at why the CCA was not used. Whilst Lord Gove has stated that the events must be unforeseen for the CCA to used, the statement leaves open the possibility that there may have been other reasons why it was not used and his use of the word unforeseen is not necessarily accurate. For the CCA to be used, various conditions must be satisfied: foreseeability is not one of them. It is assumed Lord Gove used the term ‘unforeseen’ colloquially, but Mr Hargreaves cannot say what was in Lord Gove’s mind at the time he was giving evidence to the Inquiry. Mr Hargreaves also observed that the Inquiry had not asked for the Legal Advice. He accepted that they could not compel production of the advice but averred that the Inquiry would not have been slow in saying the advice was material, if it thought this.

Other speeches relating to the conditions of usage of the CCA were shown to Mr Hargreaves. Mr Hargreaves stated that the points had been debated for 20 years, everyone is referring to well understood points – the basic mechanics of the Act. The correct consideration is ‘emergency’, and it could be that Lord Gove is referring to the urgency and necessity elements of the test. The debate as to which powers to use was never led by legality, the purpose of the COBR meetings is to determine the right thing to do.

It was put to Mr Hargreaves that the issue of whether the PHA powers used were to avoid scrutiny is important to public debate, it being observed that use of the CCA would provide more parliamentary scrutiny and by using the PHA there was no room for consideration by Parliament of the Regulations.

Mr Hargreaves stated the regulation making powers were scrutinised by Parliament. The government has the power to make the Regulations. There was no avoidance of scrutiny. The pros and cons of lockdown were debated. The public have the right to challenge the use of the power by the government by way of judicial review, if it has used a power improperly or unlawfully. There are pros and cons to using the CCA, all of which were considered.

Mr Hargreaves continued by asserting that there would be a ‘chilling effect’ if the legal advice were to be disclosed. Advice given in a moment of crisis needs judgements to be made quickly. Advice is delivered at pace and sometimes on the spot verbally. It is different in character to what would normally be expected. Mr Hargreaves explained this further by way of example; when war planes are in the air, the criticality of time means ordinary processes are not available to legal advisers or other advisers. It is a difficult operating environment. They are exposed and make their best effort. If they know that further down the line this might be second guessed, it will have a substantial chilling effect as they may wish to delay or seek second opinions, and the Government could not receive advice in the moment. Advisors seek solace that advice given at pace forms part of a closed discussion, and to disclose it could lead to unfair criticism.

Mr Hargreaves was asked whether this was consistent with the Civil Service Code. In response, Mr Hargreaves gave an example of the sort of behaviour that might change in an emergency, with a lawyer providing advice wanting to test the opinion with a senior lawyer in ‘peace time’ but not having time to do this in an emergency. If there was a fear of the advice being disclosed, lawyers would revert to ‘peace time’ models, in an emergency situation. There may be criticism of the advice given in an emergency without an understanding of the context within which the advice was given.

It was suggested to Mr Hargreaves that, given the Legal Advice was developed at pace, if there was a future emergency it is unlikely that the government would go back and consider the advice – the Government would ask for new advice. Mr Hargreaves averred that ‘what goes before tends to be the starting point for what we do next’. At the point in time of Mr Kingsley’s request, the Government would have relied on the advice, although the Inquiry outcomes have subsequently led to ‘new planning’.

Mr Hargreaves contended that there has been complete scrutiny of the Government’s actions and the use of powers, by the Inquiry and the CCA review. The review of the CCA in 2022 looked at the mechanism and whether it still worked and was fit for purpose. Whenever legislation is passed there is parliamentary scrutiny. The Inquiry has looked at everything pertinent to the issue of why certain powers were used. There will be significant lessons learned for the Government from the Inquiry report and will most likely make a difference to future pandemic planning. Whilst the Inquiry does not have a monopoly on the issue, they are the focal point for national consideration. If the Inquiry had thought the legal advice important to their investigation, they would not have been slow in saying it or requesting it.

Mr Hargreaves also gave evidence in a CLOSED session. Details are provided in the CLOSED judgment. The following gist of the CLOSED session was provided to Mr Kingsley:

“1.

The session started with Mr Hopkins taking the Tribunal through the contents of the CLOSED bundle.

2.

Mr Lavery cross-examined Mr Hargreaves on:

a.

The process and timings of the production of the Advice;

b.

Specific parts of the Advice itself.

3.

Under cross examination, Mr Hargreaves confirmed that neither Advice had a named author attributed to it.

4.

In re-examination, Mr Hopkins asked about the role played by these Advices in governmental decision-making, and the consequences if Advice of this nature were published.

5.

Mr Hargreaves’ answers referred to the Withheld Material.”

We first consider whether Lord Gove’s answer to the Inquiry amounts to a waiver of the legal professional privilege attached to the legal advice falling within the scope of Mr Kingsley’s request. If privilege is waived, then section 42(1) does not apply, and the Legal Advice must be disclosed. In such circumstances, there is no need to apply the public interest test.

Although we have partially set this out above, it is prudent to begin our analysis by identifying the evidence provided by Lord Gove to the Inquiry, that has led to the need for consideration to be given to the issue of waiver. On 28 November 2023, Lord Gove was asked the following question by counsel to the inquiry:

“The United Kingdom Government had on the statute books the Civil Contingencies Act 2004 which had a never used provision that allowed it to produce emergency regulations, which would require governors being appointed for parts of the United Kingdom. It also had on its statute books the Public Health (Control of Disease) Act as well as the new Coronavirus Act which came to pass. Why did the Government not use the Civil Contingencies Act? Why did it use the Public Health (Control of Disease) Act and then, when it came into force, the Coronavirus Act?”

Lord Gove’s answer was as follows:

“Several reasons. The Civil Contingencies Act was designed to deal with events like a terrorist attack which paralyses national infrastructure. The powers within it are draconian and to take that step, to cross that threshold, also requires a Civil Contingencies Act to be actively renewed, and if it falls away, if the immediate nature of the crisis, the immediate sudden impact, as it were, diminishes, then the case for maintaining it diminishes too. So it was thought better to have bespoke legislation… “

There was then an exchange regarding the potential use of the CCA, which included the following:

“Q. There is also a provision in the Act, is there not, which requires the event, in respect of which one is passing the regulations, to be unforeseen?

A. Yes.

Q. So, in essence, a judgement call was taken that this was a step too far. It was the nuclear option, it had never been used, this was not the time to do it?

A.

Precisely so. And the unforeseen element is, again, it's debatable, and we did have that debate with government lawyers, to what extent was the pandemic unforeseen? And the general view was that, as I say, a terrorist attack, by definition, would be unforeseen but the gathering storm of a pandemic might not meet that threshold.”

Moving on to the applicable legal principles underlying consideration of the issue of waiver of legal professional privilege; the parties referred the Tribunal to various authorities in this regard but, in our view, we can do no better than recite the words of Mr Justice Waksman in PCP Capital Partners v Barclays Bank [2020] EWHC 1393 (Comm), at [47] – [49]:

At [50], Waksman J turned to : "the vexed question which still confounds the law of privilege, namely the idea that, quite apart from reliance, waiver cannot arise if the reference is to the "effect" of the legal advice as opposed to its "contents"." In this regard, Waksman J said as follows at [60]:

“…the application of the content/effect distinction, as a means of determining whether there has been a waiver or not, cannot be applied mechanistically. Its application has to be viewed and made through the prism of (a) whether there is any reliance on the privileged material adverted to; (b) what the purpose of that reliance is; and (c) the particular context of the case in question. This is an acutely fact-sensitive exercise. To be clear, this means that in a particular case, the fact that only the conclusion of the legal advice referred to is stated as opposed to the detail of the contents may not prevent there being a waiver.”

The Tribunal’s analysis of the waiver issue can helpfully be subdivided as follows:

Considering these in turn, we first conclude that, as a matter of law, legal privilege is capable of being waived in evidence given before an Inquiry.

In this regard, the CO submits, albeit in the briefest of terms, that the concept of waiver does not apply “at least invariably” in the context of an inquiry. Both Mr Kingsley and the Commissioner contend that concept of waiver is, as a matter of law, capable of applying to evidence given during an Inquiry.

The CO’s submission is founded on the distinction between the Court’s adversarial process, in which evidence is deployed in order to attempt to gain an advantage over another party to the litigation, and the inquisitorial nature of an inquiry, in which evidence is given to assist the inquiry and not to gain an advantage over an opponent.

Whilst we readily accept that cherry picking and fairness concerns are at the forefront of considerations of whether privilege has been waived through evidence given in adversarial proceedings, they do not function as absolutes in the assessment of the application of privilege – see, for example, PCP at [47(6)]. Determining whether privilege has been waived is an acutely fact sensitive exercise. That the evidence in question was given during an inquisitorial process is relevant context, but not determinative as to the application of the principles of waiver.

We next turn to consider what, in substance, is the core issue, whether Lord Gove’s oral evidence to the Inquiry amounts to a waiver of privilege on the facts of this case.

The Request sets out the basis on which Mr Kingsley contends that privilege has been waived, noting that Lord Gove had “revealed the main substance of that advice in his public evidence when he said "And the general view was that, as I say, a terrorist attack, by definition, would be unforeseen but the gathering storm of a pandemic might not meet that threshold", and that in doing so “in a public forum, and moreover by putting the content of the advice at issue by referencing it to explain the state of mind of key decision-makers at that time, including himself, the Rt Hon Michael Gove MP has waived legal professional privilege in that advice”.

Mr Kingsley maintains that Lord Gove provided his view as to why the Government did not use the CCA, setting out his understanding of the law in the context of having a debate with government lawyers. It is averred that he went beyond mere reference to the advice and referred to the content of the Legal Advice. It is further maintained that it is possible that the evidence Lord Gove gave to the Inquiry did not accurately reflect the advice, in which case fairness requires that the advice be disclosed. This weighs heavily in favour of privilege being waived. Alternatively, if it is found that the evidence given to the Inquiry was only partial disclosure of the advice then, at the very least, redacted disclosure should be provided.

Attention was drawn to the Australian case of Bennett v Chief Executive Officer of the Australian Customs Service[2004] FCAFC 237, where it was said by Tamberlin J at paragraph 13 (emphasis added):

“Various expressions are used in the formulation of principles relating to waiver of legal professional privilege, such as references to 'the substance', 'effect' or 'content' of the advice. The weight of the authorities, in my view, supports the conclusion that the disclosure of the conclusion reached in or course of action recommended by, an advice can amount to waiver of privilege in respect of the premises relating to the opinion which has been disclosed, notwithstanding that this reasoning is not disclosed. By way of illustration, if there is a disclosure that a client has been advised that interpretation 'A' is preferable to interpretation 'B' of a legislative provision, then even if there is no disclosure of the reasoning leading to that conclusion, the reasoning and content of the advice may be waived, including the factual premises and circumstances leading to that conclusion.”

In written and oral submissions, the CO submit that it would be irrational to conclude that the short statement of Lord Gove to the Inquiry amounts to waiver of privilege. It is not clear from his statement what Lord Gove is referring to, there is no reference to legal advice, and, in any event, the substance of any legal advice has not been revealed. There was no reliance by Lord Gove on the legal advice, and there is no ‘cherry-picking’. The word unforeseen used by Lord Gove was actually initially Counsel to the Inquiry’s words, not Lord Gove’s. The CO also made brief submissions on this issue in CLOSED. A gist was provided to Mr Kingsley stating that it was submitted that the contents of the Legal Advice supported the OPEN submissions on the issue of waiver.

The Commissioner averred that a passing reference by Lord Gove of the type given in his evidence to the Inquiry, does not amount to waiver of the Legal Advice. The operation of waiver is different in the context of an inquiry, as it is not an adversarial process and there can be no unfairness or cherry picking concerns. The evidence given by Lord Gove does not give any specific reference to particular legal advice, the reference to a debate may be a reference to an oral debate, not written legal advice. Lord Gove does not refer to any reasoning that may have been provided in the Legal Advice. In summary, to the extent there is any reference to legal advice, which it is submitted there is not, it is a narrative reference or a reference to a conclusion and not the contents of the advice.

Having carefully considered the terms of the Legal Advice that are the subject of this appeal, we do not accept that, in the material evidence to the Inquiry, Lord Gove was referring to either of these two pieces of legal advice. In any event, even if we had concluded that Lord Gove was referring to one or both pieces of legal advice in his evidence to the Inquiry, we would have concluded that the evidence to the Inquiry does not reveal the substance or gist of that legal advice. In reaching this conclusion we have found that the exchange between Lord Gove and Counsel at the Inquiry related to the issue of why the Government did not use the CCA as opposed to the PHA or, later, the Coronavirus Act. This is plain from reading the whole of the exchange found at page 364 of the bundle, rather than just the few lines of the extract referred to in the Request. In this context, it is clear that the particular section of the exchange alighted upon by the parties, and being of most relevance, is referencing the threshold in the CCA for the passing of subordinate regulations. This is not a case in which the non-adversarial nature of Inquiries weighs materially in our analysis, as it may have done in other scenarios. This is not because there is no significance to the fact that the evidence was provided in inquisitorial rather than adversarial proceedings, or that Lord Gove was not seeking to ‘cherry-pick’ or advance a case, but rather, it is because the answer to the issue posed of the Tribunal can be swiftly identified by duly analysing the terms of the two pieces of legal advice, properly set in the context of the evidence given by Lord Gove. Further reasons are provided in the CLOSED decision.

We further find that reference to the Australian case of Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237, does not assist Mr Kingsley. This decision is not binding on this Tribunal, although we accept that it evinces what seems to us to be a sensible principle. However, nothing said by Lord Gove was akin, or remotely analogous, to a disclosure that the Legal Advice was to the effect “interpretation A is preferable to interpretation B”. Further reasons are provided in CLOSED.

Having considered the two pieces of legal advice, and for the reasons given above, we find that there has been no waiver of privilege in the Legal Advice as a consequence of the evidence given by Lord Gove to the Inquiry.

Having determined that there has been no waiver of privilege, it is otherwise accepted by the parties that section 42 is engaged i.e. the Legal Advice is the subject of legal professional privilege. The only remaining question for the Tribunal is, therefore, whether, in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information – section 2(2)(b) FOIA. In undertaking this assessment, the Tribunal must “identify the values, policies and so on that give the public interests their significance” and then decide which public interest is the most significant”: O’Hanlon v Information Commissioner [2019] UKUT 34 (AAC).

In All Party Parliamentary Group on Extraordinary Rendition v InformationCommissioner [2013] UKUT 0560 (AAC), the Upper Tribunal said at [149]:

“When assessing competing public interests under FOIA the correct approach is to identify the actual harm or prejudice that the proposed disclosure would (or would be likely to or may) cause and the actual benefits its disclosure would (or would be likely to or may) confer or promote. This…requires an appropriately detailed identification, proof, explanation and examination of both (a) the harm or prejudice, and (b) benefits that the proposed disclosure of the relevant material in respect of which the exemption is claimed would (or would be likely to or may) cause or promote.”

In accordance with the decision of the Upper Tribunal in Montague v Information Commissioner and DIT [2022] UKUT 104 (AAC), at [86], “…the public authority is not to be judged on the balance of competing interests on how matters stand other than at the time of the decision on the request which it has been obliged by Part I of FOIA to make.”

The parties’ submissions on the issue of the public interest broadly fall into the following themes, which we consider in turn below:

We turn first to consider the public interest factors that have been put forward in favour of maintaining the exemption.

The rationale underpinning legal professional privilege is detailed in the judgment of Lord Taylor CJ in R v Derby Mags Court ex parte B [1996] AC 487 at 507D:

“The principle which runs through all these cases, and the many other cases which were cited, is that 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.”

Mr Justice Wyn Williams gave guidance in relation to the application of the public interest test in section 42 FOIA cases, in DBERR v O’Brien v IC [2009] EWHC 164 QB, [41 & 53]:

Wyn Williams J also made clear at [51] that the “significant weight” inherent in section 42 is to be taken into account in addition to any case specific factors, and that this general factor arises without the need “to demonstrate any specific prejudice or harm from the specific disclosure of the documents in question.”

We, therefore, accept that the in-built public interest in non-disclosure of information otherwise protected by legal professional privilege carries significant weight, which will be considered in the balancing exercise. However, whilst in the common law context there is no requirement to engage in a balancing exercise once it is found that legal professional privilege is engaged, ostensibly because legal professional privilege is seen as the predominant public interest, this is not the position under FOIA. Parliament has chosen not to make section 42 an absolute exemption and, although significant weight must be accorded to the exemption, it must not be so heavy so as to effectively be elevated into an absolute exemption – see, for example, Corderoy and Ahmed v Information Commissioner, Attorney-General and Cabinet Office [2017] UKUT 495 (AAC)) at [68].

In its skeleton argument, the CO submits that the test that the Tribunal must apply is “effectively one of exceptionality” (see [62]). We do not accept that the case law supports the application by the Tribunal of a ‘test’ of exceptionality. The case law does no more than express an expectation that when the legal professional privilege exemption is engaged, it will only be on rare occasions that the public interest balance falls in favour of disclosure. This offers no insight in to how the public interest balance will fall in any given appeal. Just because there is an inbuilt weight in the legal professional privilege exemption, which does not mean that there cannot be factors in favour of disclosure that are weightier than those in favour of maintaining the exemption. That is a fact specific analysis to be conducted on a case by case basis, taking full cognisance of what we have said above about the inherent weight of the exemption.

The submissions in relation to the general theme of the ‘likelihood and severity of the harm caused by disclosure’ – other than those already referred to under the ‘inherent weight’ heading above, fall into three categories:

The recency of the Legal Advice must factor into any assessment of the likelihood and level of harm that would be caused by its disclosure. We accept that, as of the date of the CO’s response to Mr Kingsley’s FOIA request, the Legal Advice was recent, in that it was just shy of 4 years old.

In reality, the relevance of the recency of the Legal Advice to the issue of the likelihood of the severity of harm caused by disclosure, is intertwined with the issue of whether the Legal Advice was ‘live’ at the time of the CO’s response to Mr Kingsley’s request.

This is another area of our considerations where the parties’ positions diverge significantly.

The CO contends that the Legal Advice is still live because it would likely form part of the material upon which legal advisers would draw in the event of comparable future emergencies. This submission was directly supported by the evidence of Mr Hargreaves, who indicated that this would be the case even though the largest peacetime planning exercise has subsequently been conducted to ensure preparedness for any such future emergency. There is no reason we should not accept this evidence at face value.

Having taken this into account we, nevertheless, attach little weight to the fact that the advice is recent and live. This was an advice produced in a matter of days very early on in the Pandemic. Furthermore, although the Legal Advice formed part of the material relating to discussions which led to such constitutionally significant political decisions, at the time of the CO’s response, most of the Coronavirus Act had expired and the restrictions in regulations made under the PHA had been repealed or revoked, with the last major update occurring in April 2022 – although we do also take cognisance of the fact that the CCA and PHA were, and are, still live pieces of legislation. Additionally, significant post-implementation learning had taken place between the date of the Legal Advice and the date of the CO’s response to Mr Kingsley. Even if there had been no subsequent learning, if the Legal Advice were to be disclosed to the public now, this would not remove it from the knowledge bank. No reason has been advanced as to why, in the event of a future emergency, the Government of the time could not draw upon this advice, if it were thought appropriate to do so, despite it having been disclosed to the world at large. Mr Hargreaves specifically accepted that this was so under cross-examination.

We now turn to what was labelled as the ‘chilling effect’, which in this appeal is the broad term given to the detrimental future impact of disclosure on both the nature of Legal Advice given by the Government lawyers in an emergency scenario, the inhibition and on the “exploration of all options” by those who would otherwise be involved in decision making. On this issue, the Tribunal had the advantage of direct evidence from Mr Hargreaves as to the nature and effect of this chilling effect.

In his OPEN witness statement, Mr Hargreaves says as follows regarding the nature and effect of disclosure:

This evidence was robustly tested in cross examination, a summary of which is set out above.

The parties’ positions as to the weight to be afforded to this evidence, and the chilling effect, are diametrically opposed. The CO submits that Mr Hargreaves has extensive knowledge of how Government operates and his evidence should be given very significant weight in relation to the minds of those providing advice, including legal advice, in haste. Disclosure of legal advice provided on an emergency basis, even if that disclosure were by order of the Commissioner or the Tribunal, would play on the mind of the advisors, they would be more cautious, require second opinions and additional time. This is detrimental to effective decision making in a crisis. There will be a fear of ‘public raking over the coals’.

It was contended on behalf of Mr Kingsley that, at their highest, the chilling effect arguments are ‘an extremely weak factor’. It is maintained that the rationale underpinning the CO’s chilling effects arguments is in effect a restatement of the rationale underpinning the inherent weight to be attached to legal professional privilege. Furthermore, case law indicates that such arguments should be treated with caution. Public officials must now recognise that it is not possible to guarantee the confidentiality of their advice or deliberations. Legal advisors would know that the section 42 exemption is not absolute. Civil servants and other public officials are expected to be impartial and robust when giving advice, and they will not easily be deterred from expressing their views by the fear of future disclosure. We are entitled to expect public officials to be courageous and independent in their work. They will understand the importance of their role in providing advice. The lawyers would have professional obligations to give complete and accurate advice. Mr Hargreaves’ examples related to situations which were not akin to the giving of the Legal Advice that is the subject of the instant appeal. His examples related to the giving of advice when ‘planes were in the air’. There have been cases where legal advice has been disclosed.

The Commissioner’s submissions were broadly aligned with those made on behalf of Mr Kingsley, with emphasis being placed on the knowledge of public officials that non-disclosure is not guaranteed, and that the public are entitled to expect courage and independence from civil servants.

In our conclusion, it is appropriate to attach no material weight to what has been termed in this appeal as the ‘chilling effect’.

The starting point for our analysis is the evidence of Mr Hargreaves, the crux of which is found at [112] of his witness statement, to the effect that those being required to produce legal advice on an emergency basis would, if there was a fear of that advice being disclosed in the future, delay the advice for consultation or the acquisition of further evidence through fear of second-guessing.

We accept that when faced with evidence from an institutional witness, such as Mr Hargreaves – who we find has significant relevant experience, albeit he was not directly involved in the process leading to the production of the Legal Advice in the instant case, we should follow the principles endorsed by the Upper Tribunal in the decision in Department for Transport v IC and Alexander [2021] UKUT 327 (AAC); [2022] 1 WLR 3403 at [134]):

We also observe that in Alexander, the Upper Tribunal noted the principle that assertions of a chilling effect should be treated with caution, but counterbalanced them with the observation, at [138]:

“… A degree of circumspection or caution does not however mean (and is not suggested in any of the authorities to mean) that this threshold can never be discharged (particularly given the low degree of likelihood required), nor that it cannot properly be discharged on the basis of evidence in writing setting out the basis of the view taken that such a chilling effect will occur, as occurred in this case.”

We readily accept Mr Hargreaves has extensive experience in the commissioning and use of legal advice in a wide variety of government contexts. We also accept his evidence that government lawyers operate differently in emergency situations, in that “the practical constraints of time and sensitivity during crisis can inhibit the scope for legal advice to be developed in the fulsome and complete way that government lawyers would ordinarily adopt”. However, we do not accept that if the Legal Advice in the instant case were disclosed this would likely lead to government lawyers, if asked for emergency advice in the future, reverting to ‘adopting a peacetime process’ – a more time consuming and cautious approach, such as to “deter full, candid and proper deliberation of policy formulation and development, including the exploration of all options”

In giving his evidence, in this regard Mr Hargreaves was applying his wider knowledge and experience of managing crisis situations in government, to the question of how government lawyers would likely behave in the future when asked to give legal advice in an emergency situation, if the Legal Advice that is relevant to the instant appeal were to be disclosed.

We observe that Mr Hargreaves does not purport to have ever worked as a government lawyer, nor does he either; recount factual evidence of enquiries made of government lawyers on this issue, or detail historic events which support the evidence that government lawyers would, in the future, act in the manner contended for if the Legal Advice were to be disclosed. On the evidence we have before us, it appears, at its highest, that Mr Hargreaves is importing potential future behaviours to government lawyers that he has experience of occurring in other spheres of public life, although even then Mr Hargreaves did not provide the Tribunal with any real life examples.

The lawyers working in government are subject to professional regulatory obligations, as well as the Civil Service Code. Mr Hargreaves accepted this in his evidence. Those obligations, and the Code, currently require the lawyers to provide information and advice on the basis of the evidence, and to accurately present the options and the facts. That will still be the position if the Legal Advice is disclosed. In addition, the lawyers working in government will already be aware that any legal advice they provide has the potential to be disclosed by virtue of the operation of FOIA. Despite this, they have been prepared to provide advice on an emergency basis in the manner described by Mr Hargreaves. We do not accept that government lawyers would have been operating thus far on the understanding that, despite section 42 of FOIA being a qualified exemption, there was no prospect of that section being operated so as to require disclosure. Finally, in our view, if disclosure were to be ordered in this case, any diligent government lawyer would understand that this is a rare or exceptional case involving matters of the utmost constitutional importance, with significant public interest arguments in favour of disclosure founded on the unprecedented Covid-19 related events.

As to the submission that the government legal advisers may potentially be ‘raked publicly over the coals’ if the Legal Advice were to be disclosed, we make two points. First, insofar as this submission was intended to reinforce the submission that government legal advisers in the future would act differently when giving advice if the Legal Advice relevant to this appeal were to be disclosed, we conclude that the same points made in the preceding paragraph apply equally to this submission. If the submission was intended to relate to the authors of the Legal Advice in the instant appeal, then, as identified in the gist of the CLOSED evidence, neither legal advice has an attributed author, although we do also accept that in such circumstances the advice may be attributed to the director of the relevant department. In our view, the context in which the Legal Advice was produced would also go to ameliorate the possibility of criticism of the contents, albeit we accept that this would not prohibit unfair and unreasonable criticism. Looked at in the round we attach no material weight to this submission.

There is also a separate ‘safe space’ submission by CO; that if the Legal Advice were to be disclosed this would inhibit candid discussion amongst all those involved in the policy development process. This is said to be so, because “…candour…would be affected by their assessment of whether information relating to their discussions on legality of options will be disclosed prematurely…Release of information contained in legal advice may not give officials or Ministers those assurances that they require to work effectively on the development of policy or the response to emergencies.”

We accept that officials should have a safe space to formulate and explore advice with complete candour, but we note what Charles J said about a similar argument in Department of Health v IC & Lewis [2015] UKUT 159 (AAC) 5 at [27 & 28], albeit in the context of section 35 of FOIA.

“27.

… The lack of a right guaranteeing non-disclosure of information, absent consent, means that that information is at risk of disclosure in the overall public interest (i.e. when the public interest in disclosure outweighs the public interest in non-disclosure). As soon as this qualification is factored into the candour argument (or the relevant parts of the safe space or chilling effect arguments), it is immediately apparent that it highlights a weakness in it. This is because the argument cannot be founded on an expectation that the relevant communications will not be so disclosed…

28.

The same weakness exists in respect of a qualified FOIA exemption because any properly informed person will know that information held by a public authority is at risk of disclosure in the public interest.”

This is akin to a point we have already made above in relation to the submission regarding government legal advisers, and we conclude is also of relevance to a consideration of the ‘safe space’ submissions made by the CO. In addition, as was contended for by the Commissioner, in judging the likely consequences of disclosure on officials future conduct, “we are entitled to expect of them … courage and independence…These are highly – educated and politically sophisticated public servants who well understand the importance of their impartial role as counsellors to ministers of conflicting convictions.” Mr Hargreaves’ evidence on this issue, although provided from a place of experience, is framed in broad, and speculative, terms. Looking at everything in the round, we attach little weight to this aspect of the public interest in favour of maintaining the exemption.