Redaction of names of junior civil servants in judicial review proceedings

R (IAB and others) v Secretary of State for the Home Department and Secretary of State for Levelling Up, Housing and Communities [2024] EWCA Civ 66 confirms that the principle of open justice and the duty of candour requires that the names of junior civil servants should not ordinarily be redacted when providing disclosure.

Background

In an earlier article we set out how in a High Court case (‘IAB’) Swift J held that litigants in judicial review proceedings are not entitled to redact, on the ground of relevance, the identities of officials in disclosed documents.

The IAB case concerned the lawfulness of regulations removing the requirement for houses in multiple occupation to be licensed if asylum seekers are to be placed there. The merits of the susbtantive case have not yet been decided.

In the IAB case, the government had served documents in which most of the names of civil servants in grades below the Senior Civil Service were redacted. The claimant sought to receive unredacted copies of the documents.

It is in this context that Swift J found that names of civil servants should not routinely be redacted from disclosable documents; redaction should take place only where it is necessary for good and sufficient reason supported by an application seeking permission for the proposed approach.

Subsequently, a further judicial review judgment Fordham J confirmed the findings of Swift J as the correct approach to making redactions and also rejected labeling the civil servant names using a cipher, such as ‘Civil Servant A’, as an alternative.

The government appealed Swift J’s decision in IAB, and an expedited appeal was heard by the Court of Appeal on 24 January 2024.

Judgment

The government argued that junior officials were entitled to a greater degree of protection from personal exposure than their senior colleagues and so their names should be redacted in judicial review disclosure unless relevant.

The core of the government’s argument was as follows:

“The names and identities of JCS [junior civil servants] will generally be irrelevant. The mere fact that a civil servant was involved at some point in considering or discussing the issues relating to the decision does not render their identity relevant. Nor does being named (e.g., as a recipient of an email) in a document which has been disclosed. Relevance depends on the fact in question (here, e.g., the name/identity of the recipient of an email) bearing in a material way on the issues in dispute.”

The respondents rejected this arguing, in summary, that it was “antithetical to the duty of candour to make redactions which obscure the context, significance or intelligibility of the documents disclosed or which apply a policy of redaction by default”.

The Court of Appeal dismissed the government’s appeal. In dismissing the appeal, the Court of Appeal did not pull its punches and the Court described the government’s submissions as ‘extraordinarily far-reaching’.

Alternatives to redactions (such as the use of ciphers) were also dismissed by the Court with Bean LJ nothing that “One would think that members of the Government Legal Department, even junior ones, had better things to do with their time”. Bean LJ went on to describe the government’s proposed approach to redactions as inimical to open government.

Implications

The government may seek to appeal the Court of Appeal’s decision to the Supreme Court. However, for now, the key takeaway remains as stated in our previous articles. It is clear that a litigant in judicial review proceedings is not entitled, as a matter of course, to redact, on the ground of relevance, the identities of officials in disclosure.

This does not mean that a litigant cannot apply to redact officials’ names/details. The Court of Appeal noted that it is well established in ordinary civil litigation and in judicial review proceedings that parts of a document concerned with wholly different subject matter from that in issue may be redacted. It may also be justifiable to redact names, for example, for reasons of national security or where there is evidence of a real risk to the personal safety of the individual concerned. However, where such redactions are sought, a litigant must apply for permission to serve disclosure in this way.

This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any issue raised in this article, please contact us by telephone or email enquiries@sharpepritchard.co.uk