Legal advice

Requests for legal advice, whether legal advice was sought and requests for Law Officers' advice.

What information does this cover?

Requests for legal advice, whether legal advice was sought and requests for Law Officers' advice.

Working assumption

Legal advice should be withheld citing section 42(1) (Legal Professional Privilege). Where the legal advice relates to policy formulation, you should also cite section 35(1)(a) (formulation of government policy, and so on).

When answering requests that may include Law Officers' advice you should issue a neither confirm nor deny response, citing section 35(3), on the basis that the request relates to information which would be exempt by virtue of section 35(1)(c) (provision of advice by Law Officers).

Legal advice that relates to environmental information should be withheld citing Environmental Information Regulations (EIR) 12(4)(e) (internal communications), 12(5)(d) (confidentiality provided by law) or 12(5)(b) (course of justice).

Reasons for the assumption

Legal Professional Privilege

Legal Professional Privilege (LPP) is a legal rule which protects the confidentiality of legal communication. It covers all communications between a lawyer and their client provided the communications are directly related to the performance by the lawyer of their professional duty as legal adviser. It may also cover some communications between a lawyer and third parties, for example when seeking evidence from an expert for the purposes of litigation.

LPP attaches to information rather than documents, so section 42 will protect instances where privileged information is recounted - for example, where a policy official relays legal advice to a minister via a submission.

While it is conceivable that in a particular case there may be sufficient public interest arguments why legal advice should be released, in practice these cases are likely to be few and far between. In the majority of cases, the public interest factors in maintaining the exemption will outweigh any public interest in releasing the information.

The effect of LPP in normal court proceedings is to grant such communications immunity from disclosure. The case law regarding LPP shows there is a strong element of public interest inbuilt into the privilege itself. At least equally strong countervailing considerations would need to be adduced to override that inbuilt public interest. The Information Tribunal has agreed with this approach.

It is important that government is able to receive legal advice on an ad hoc basis as and when necessary.

Public interest test

The public interest arguments in favour of applying the exemptions under section 35(1)(a) and (c) (formulation or development of government policy and advice of the law officers respectively), and under section 42(1) (legal professional privilege) are set out below. Similar public interest arguments apply to Environmental Information Regulations 12(4)(e) (internal communications) 12(5)(d) (confidentiality provided by law) or 12(5)(b) (course of justice). The Defra website contains more information on applying the EIR exceptions.

It is in the public interest that the decisions taken by government are taken in a fully informed legal context. Government departments therefore need high-quality, comprehensive legal advice for the effective conduct of their business. That advice needs to be given in context, and with a full appreciation of the relevant facts.

The legal adviser needs to be able to present the full picture to his or her departmental clients, which includes arguments in support of his or her final conclusions with relevant counterarguments. It is in the nature of legal advice that it often sets out the possible arguments both for and against a particular view, weighing up their relative merits. This means that legal advice obtained by a government department will often set out the perceived weaknesses of the department's position.

Without such comprehensive advice the quality of the government's decision-making would be much reduced since it would not be fully informed and this would be contrary to the public interest.

Disclosure of legal advice has a significant potential to prejudice the government's ability to defend its legal interests, both directly, by unfairly exposing its legal position to challenge, and indirectly by diminishing the reliance it can place on the advice having been fully considered and presented without fear or favour. Neither of these scenarios is in the public interest. The former could result in serious consequential loss, or at least in a waste of resources in defending unnecessary challenges. The latter may result in poorer decision-making because the decisions themselves may not be taken on a fully informed basis.

There is also a risk that clients and lawyers will avoid making a permanent record of the advice that is sought or given or make only a partial record. This too would be contrary to the public interest. It is in the public interest that the provision of legal advice is fully recorded in writing and that the process of decision-making is described accurately and fully; the legal advice must be part of that record. At worst there may even be a reluctance to seek the advice at all.

This could lead to decisions being made that are legally unsound. In addition to undermining the quality of the government's decision-making, this is likely to attract successful legal challenges which could otherwise have been avoided. Even in areas where a legal challenge is unlikely, government's willingness to seek frank legal advice is essential in upholding the rule of the law.

Requests for Law Officers' advice

LPP does not, in usual circumstances, attach to the fact that legal opinion has been sought, and therefore the LPP exemption cannot usually be relied upon to protect this fact alone.

The section 35 (formulation of government policy) exemptions operate in recognition of the longstanding convention, followed by successive governments, that the government does not disclose whether the Law Officers have been consulted nor does it disclose the content of Law Officer's advice. This convention is expressly recognised in paragraph 2.13 of the Ministerial Code, which provides that:

'The fact that the Law Officers have advised or have not advised and the content of their advice must not be disclosed outside government without their authority.'

This longstanding convention is based on the strong public interest in ensuring that a minister or government department is able to act free from external pressure in deciding what sort of legal advice it obtains, at what stage, from whom, and in particular whether it should seek advice from the Law Officers. The government is entitled to receive frank and confidential advice from its principal legal adviser. Confirming or denying that information is held would harm the strong public interest in the maintenance of the convention.

The Law Officers must be consulted before disclosing either their advice, or the fact that such advice was sought or received.

Requests for whether or not legal advice was sought

The current view is that LPP does not, in usual circumstances, attach to the fact that legal opinion has been sought, and therefore the LPP exemption cannot usually be relied upon to protect this fact alone. However, officials should note that, in some circumstances, the fact that legal advice has been sought may be protected by LPP, for example where disclosing the very fact that legal advice was sought would itself disclose something of the substance of the advice.

Disclosure of the fact that legal advice was sought on a particular question may prejudice the government's ability to make sound policy decisions - by highlighting the questions of policy where the government was concerned enough to seek legal advice. This is generally contrary to the public interest. If government was forced to reveal these aspects of policy where it had sought legal advice, it would effectively be highlighting what it thought were the points of legal debate, or even weakness, in that policy. Doing so could result in serious consequential loss, or at least in a waste of resources through encouraging unnecessary challenges.

For requests for information about whether or not legal advice was sought in relation to a policy question, you should consider issuing a neither confirm nor deny response citing section 35(1)(a) (formulation of government policy, and so on). However, each case should be considered on its own merits.

Further guidance on LPP can be found in the exemptions guidance under sections 35 (formulation of government policy) and 42 (legal professional privilege).

Referral Points

You should refer cases to the Clearing House if:

you propose not to handle the request in accordance with this working assumption
after consulting your legal adviser, you are still not sure whether the information is legal advice or not.

Notes

(1) Mr M Shipton v the Information Commissioner and National Assembly of Wales (EA/2006/0028) (11 January 2007) and USP Strategies v London General Holdings Ltd [2004] EWHC 373 (Ch).

(2) See Mr Christopher Bellamy v the Information Commissioner (EA/2005/0023) (3 April 2006), Mr F Adlam v the Information Commissioner and HM Treasury (EA/2006/0079) (5 November 2007), and Mr T Kitchener v the Information Commissioner and Derby County Council (EA/2006/0044) (20 December 2006).