Legal advice on the legislative basis for nationwide lockdowns

Waiting for an internal review by Cabinet Office of their handling of this request.

Dear Cabinet Office,

This is a request for disclosure under the Freedom of Information Act 2000.

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).

Please therefore disclose the information that I have requested without delay and in any event within the statutorily prescribed period. Should you intend to resist disclosure by reference to section 42, FOIA, please declare this at the earliest opportunity so that the matter can then be dealt with promptly by the ICO.

Yours faithfully,

Mr B Kingsley

Cabinet Office FOI Team,

Our ref: FOI2023/14285

Dear B Kingsley,

Thank you for your request for information which was received on 5th
December. Your request is being handled under the terms of the Freedom of
Information Act 2000 ('the Act').

The Act requires that a response must be given promptly, and in any event
within 20 working days. We will therefore aim to reply at the latest by
8th January.

Please remember to quote the reference number above in any future
communications.

Yours sincerely,

Freedom of Information Team

Cabinet Office

Cabinet Office FOI Team,

1 Attachment

Dear B Kingsley

The date that the response is due for your request, FOI2023/14285, has
been changed to 5th February. Please see the attached letter.

Kind Regards

FOI Team

Cabinet Office

Dear Cabinet Office,

Having read your letter explaining that you wish to assess the applicability of section 35 of the FOIA, may I please draw to your attention a few pertinent points.

First, insofar as my request relates to advice relied upon to make a decision almost three years ago and which has no presently continuing legal effect, there is no live policy process in need of protection by section 35. Nor does my request relate to information concerning collective responsibility for decision-making or communications among ministers or within a ministerial private office. The question of whether legal advice was sought on the important topic at issue has been put beyond doubt by Michael Gove's comments in a public inquiry. The question of whether that advice was provided by the Attorney General, the Solicitor General, the TSol, members of the TLA or otherwise is, in this case, not a sensitive matter; indeed I would suggest that it is largely irrelevant who provided the advice.

Second, disclosure of the advice I have requested in this highly specific circumstance will not set a precedent nor will it result in any implication of the routine disclosure of legal advice sought by the Government, and should not therefore have any chilling effect on the willingness of ministers to seek advice or of legal advisors (who are subject to their own professional duties) to give candid and accurate advice to the Government in the future.

Finally, The Law Officers' Convention cannot be applicable in circumstances where a senior minister has made public both the fact that legal advice was sought, and the substantive conclusion of that advice. Moreover, by expressly relying on the existence and conclusion of that advice to justify, in a public inquiry, the Government's assessment of the legal basis for a decision or action with a very significant nationwide impact on the public, Mr Gove and Hugo Keith KC have undoubtedly evidenced that the public interest in understanding the legal basis for the Government's decision outweighs any public interest in keeping it confidential.

Yours faithfully,

Mr B Kingsley

FOI Team Mailbox, Cabinet Office

Dear B Kingsley,
Thank you for your email.
Please note that the use of this exemption is still being considered and
the final outcome will be provided in our response to FOI2023/14285.  
We do not provide ongoing commentary regarding the consideration of public
interest tests as a matter of normal practice and will not enter into
further correspondence about this until we have issued our final response.

Kind regards,

Freedom of Information Team
Cabinet Office

show quoted sections

Cabinet Office FOI Team,

1 Attachment

Dear B Kingsley,

Please find attached our response to your recent Freedom of Information
request (reference FOI2023/14285).

Yours sincerely,

Freedom of Information Team

Cabinet Office

Dear Cabinet Office,

Please pass this on to the person who conducts Freedom of Information Act internal reviews. I am writing to request an internal review of the Cabinet Office's response to my FOI request 'Legal advice on the legislative basis for nationwide lockdowns'. Specifically I seek a review of three aspects of that response.

First, the Cabinet Office has asserted that the legal advice of which I have sought disclosure is protected from disclosure by section 42, FOIA. I suggest that this is incorrect as a matter of law, and in that regard may I please draw to your attention (and for the benefit of any Cabinet Office legal officers that you may need to involve) the High Court decisions in PCP Capital Partners LLP v Barclays Bank Plc [2020] EWHC 1393 (Comm), Mid-East Sales Limited v United Engineering & Trading Company Limited [2014] EWHC 892 (Comm), and ACD (Landscape Architects) Limited v Overall [2011] EWHC 3362 (TCC). Together these judicial decisions make clear that privilege is waived if legal advice is deployed to justify or advance an argument or position relied on in public proceedings, or if other public reference is made specifically to the content or conclusion of the advice (as opposed to a mere reference to the existence of that advice).

The Cabinet Office's response to my request is factually incorrect insofar as it suggests that Mr Gove referred solely to the existence of legal advice. As the passage quoted in my original request makes absolutely clear, he also referred specifically to its main substance and conclusion, and did so in an official public proceeding in order to explain or advance an argument as to the necessity of the government's legislative action. The Cabinet Office's decision to resist disclosure in reliance on section 42 is for this reason unjustified and I ask that you overturn that decision on review.

Second, even if the advice had remained privileged, which for the reasons explained above I assert that it has not, the public interest test weighs heavily in favour of disclosure. In its response the Cabinet Office has offered essentially two justifications for determining that the public interest test is not satisfied: that disclosure could (a) discourage Ministers from seeking legal advice on complex or sensitive issues in the future, and (b) compromise the quality of the legal advice provided by advisers in the future. Both justifications are without foundation. As I noted in an earlier communication to the Cabinet Office, disclosure of the advice I have requested in this extraordinary and probably unique circumstance will not set any legal precedent nor will it give rise to any implication of the routine disclosure of legal advice sought by the Government.

As regards (a): If Ministers need legal advice they will seek it; indeed they are quite probably obliged to seek it. The exceptional circumstances of the deployment by Mr Gove of the content of this particular advice in a high profile public proceeding, on a matter of acute national public interest, are unlikely to arise again; and if any lesson is to be learned in this instance, it is that Ministers should be better briefed not to deploy in high profile public proceedings the content of legal advice which the Government does not wish to become public.

As regards (b): whenever Ministers seek legal advice, whether from government lawyers or third party lawyers, that advice should always be given accurately and completely, to the best abilities of the lawyer concerned, consistent with the professional duties to which that lawyer will be subject. If it were the case, as the Cabinet Office appears to assert, that the FOIA disclosure of any legal advice obtained by the Government could unacceptably compromise the quality of future advice, the public interest test could never be satisfied and would be redundant in relation to section 42, FOIA. That cannot be correct as a matter of law or the intention of Parliament. Mr Gove deployed the content of the legal advice in a high profile public proceeding to justify the government's legislative decision on a matter of very significant nationwide consequence for the public. If these exceptional circumstances are not sufficient to trigger the public interest test (were it needed), it appears none would be.

Finally, I accept that communications between Ministers of the Crown and among the Cabinet are not subject to FOIA disclosure. I do not seek any such disclosure, but I do seek your internal review in relation to the Cabinet Office's decision to withhold any closely-related ancillary communications or documents which are not subject to the section 35(1)(b) exception, including for example any briefing document prepared by civil servants, or communications between civil servants or between civil servants and spads which attach, explain or summarise the legal advice obtained for Ministers. For the avoidance of doubt, such communications or documents could not be privileged and so could not be withheld under section 42.

Should you need it, a full history of my FOI request and all correspondence is available at this address: https://www.whatdotheyknow.com/request/l...

Yours faithfully,

Mr B Kingsley

Cabinet Office FOI Team,

Dear B Kingsley,

Thank you for your request for an internal review (reference
IR2024/02825), which was prompted by our response to your request for
information under the Freedom of Information Act 2000.

We shall endeavour to complete the internal review and respond to you
within 20 working days.

Please remember to quote the reference number above in any future
communications.

Yours sincerely,

FOI Team