Cabinet Office v Information Commissioner: Legal Advice Privilege in PM Covid FOIA Case [2026] UKUT 140 (AAC)
Summary
The Upper Tribunal (Administrative Appeals Chamber) allowed the Cabinet Office's appeal against a First-tier Tribunal decision regarding legal advice privilege under section 42(2) Freedom of Information Act 2000. The Tribunal ruled that confirming the fact that the Prime Minister had sought legal advice on the lawfulness of the 23 March 2020 Covid-19 lockdown would have revealed information protected by legal advice privilege. The FTT's preliminary decision was set aside and remade in the Cabinet Office's favour.
What changed
The Upper Tribunal reversed the First-tier Tribunal's preliminary ruling on legal advice privilege in a Freedom of Information matter. The original decision held that confirming whether the Prime Minister sought legal advice on Covid-19 lockdown lawfulness would not attract privilege under section 42(2) FOIA. The Upper Tribunal disagreed, finding that such confirmation would reveal client-legal adviser communications. The decision clarifies the scope of legal advice privilege in government contexts, particularly regarding hypothetical advice on ministerial decisions.
Government agencies, legal advisers, and public bodies should note this precedent when assessing FOIA exemption claims based on legal advice privilege. The ruling strengthens the position of public authorities seeking to withhold legal advice from disclosure, though the privilege must still be properly established on the facts. Legal professionals advising government clients on matters potentially subject to FOI requests should be aware that even confirming the existence of legal advice may attract privilege protection.
What to do next
- Monitor for implications on future FOIA legal privilege claims
- Review government legal communications policies for privilege considerations
Archived snapshot
Apr 15, 2026GovPing captured this document from the original source. If the source has since changed or been removed, this is the text as it existed at that time.
The Cabinet Office v 1) The Information Commissioner 2) Daryl Peagram: [2026] UKUT 140 (AAC)
Upper Tribunal Administrative Appeals Chamber decision by Judge Wright on 31 March 2026.
From: HM Courts & Tribunals Service and Upper Tribunal (Administrative Appeals Chamber) Published 15 April 2026 Categories: Information rights Sub-categories: Information rights - Freedom of information - qualified exemptions Judges: Wright, S Decision date: 31 March 2026 Read the full decision in UA-2024-001742-GIA.
Judicial Summary
This is a decision about whether, under section 42(2) of the Freedom of Information Act 2000, confirmation of the fact that the then Prime Minister had sought legal advice on the lawfulness of the Covid-19 lockdown of 23 March 2020, on the hypothesis that such advice had been sought, would have revealed information to which legal advice privilege applied. The FTT decided, as a preliminary issue, that it would not.
The Upper Tribunal allows the Cabinet Office’s appeal, set asides the FFT’s decision and, in redeciding the appeal, decides that legal advice privilege (and s.42(2)) applied to the hypothesised advice sought by the Prime Minister.
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Published 15 April 2026
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