In assessing a FoIA request the in-built “significant weight” to be afforded to LPP is something to be considered in any event. It is not necessary for the party claiming LPP to demonstrate any specific prejudice or harm from the specific disclosure of the documents in question, or to establish either that Council officials would be inhibited from seeking advice if disclosure were made in the case or that advisers would be less likely to provide frank advice. Significant weight needs to be given to the public interest in maintaining LPP.  This does not mean that the LPP exemption is  absolute. All will depend on the public interest factors weighed in the balance. Disclosure is always a possibility which depends on public interest factors which are not in the control of decision-makers and their advisers, but an authority will most often be entitled to obtain legal advice on an issue and to rely on LPP to withhold it even when a request is made under FoIA. That is because of the built-in public interest in maintaining LPP. See FTT at paragraphs 31-35 inclusive in Murray-Smith v Information Commissioner, EA/2021/0039V, 4 August 2021.

In R (A) v SSHD (2021) UKSC 13 the Supreme Court sets out the test for assessing the lawfulness of a policy. That is whether the policy authorises or approves unlawful conduct by those to whom it is directed. There is no requirement for a policy to constitute a comprehensive statement of the law. It may be sufficient to identify broad categories of cases. It is not necessary to Eli I ate every potential legal certainty arising from the detailed application of the guidance. What matters is that the content is not misleading.

The Supreme Court also states that there is no free-standing ground of challenge of unacceptable risk of illegality.

To be unreasonable in the public law sense a decision must be irrational or outside the range of reasonable responses open to the decision-maker. The intensity of review may differ, but irrationality always presents a high hurdle. A rare example in which irrationality is found in a number of respects is provided by R (GB of Yew Tree Primary School) v SoS for Education (2021) EWHC 2084 (Admin). The Judge was especially critical of the SOS’s treatment of the approach and evidence of the local authority. A suggestion of bad faith or bias on the part of the authority unsupported by evidence was irrational. The case is the first successful challenge to a refusal to revoke an Academy Order.