We previously covered the High Court’s decision that routine redactions of junior civil servants’ names in judicial review disclosure was unlawful, and the Court of Appeal has now agreed with that in 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. The substantive challenge, to the removal of certain housing protections from people in asylum accommodation, was conceded by the government just before the main hearing.

The government’s appeal

The Secretaries of State appealed the finding by the High Court that the claimants were entitled to disclosure of documents without redactions that removed the name of junior civil servants. Witnesses for the government wrote of an “expectation of confidentiality” for these junior officials.

Sir James Eadie KC argued on behalf of the government that it was “permissible in principle to redact parts of disclosed documents on the basis of irrelevance to the issues in the case” and that the names of junior civil servants would generally be irrelevant. It was submitted that the names would be relevant only if the name of the official had “bearing in a material way on the issues in dispute”.

There were very few circumstances in which the government would accept that the removal of names would always be inappropriate, even in a case based on allegations of bias again a decision maker. They also argued against there being a duty to disclose names in order to improve the ability to read and understand the disclosed documents.

Great reliance was placed by the government on Good Law Project Ltd & Anor v Secretary of State for Health and Social Care [2021] EWHC 1223 (TCC) where the government proposed the use of a “confidentiality ring” where unredacted documents would be disclosed to a limited group of people, and the court made an order to that effect. In that case the Secretary of State accepted that the documents would need to be disclosed to the claimants as well as their lawyers.

The Court of Appeal’s decision

The Court of Appeal pointed out that junior officials comprise around 98% of the approximately half a million civil servants. The redaction of these names would result in disclosed documents that are covered in black spaces and far more difficult to understand.

The Court of Appeal reiterated, with reference to relevant case law, that the duty of candour imposed on public bodies is a very high one. The court rejected the government’s argument that documents could be routinely redacted to remove names or any other details not directly relevant, as some of the authorities relied on by the government concerned standard disclosure which is different to the duty of candour in judicial review.

In relation to the Good Law Project case, the Court of Appeal said that they understood the use of the “confidentiality ring” was case specific and not intended to be of general application. If it had intended by the judge to be of general application then the Court of Appeal said they did not agree with that [at 25]. The court also said that it was a different situation, as what was being proposed in IAB was that no one on the claimant’s side would see the redacted information.  

The Court of Appeal did agree with the High Court that redaction of contact details would “usually be permissible”.

The court also said that there may be cases where redactions are justified, for example where there are parts of a document that relate to a completely different subject from that being litigated. The court said that it may 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 the court was explicit that “the extent of such risks does not justify redaction of names as a matter of routine”.

The court also pointed out that the Government Legal Department’s “Guidance on Discharging the Duty of Candour and Disclosure in Judicial Review Proceedings” is silent on the redaction of names, and this undermined arguments about junior civil servants having an expectation that their names would be withheld.

The court concluded robustly:

I accept the submission on behalf of the Respondents to this appeal that defendants in judicial review proceedings do not fulfil their duty of candour if (save for good and specific reasons) they disclose documents with redactions of the names of civil servants. I am struck by the robustness with which both Swift J, a judge of almost unparalleled experience of public law litigation both as Treasury Counsel and later as a judge of the Administrative Court, and Fordham J, another judge with an encyclopaedic knowledge of judicial review, have rejected the arguments for routine redaction. I entirely agree with them. The practice is inimical to open government and unsupported by authority. If Parliament takes the view that members of the Civil Service have a general right to anonymity in judicial review litigation then it should enact a primary statute to that effect.

Conclusion

The High Court gave guidance on the process to be followed where a party is seeking to redact disclosable documents. We wait to see whether the government starts following this process. There have apparently been requests for lawyers to provide an undertaking not to disclose unredacted materials to their client in order to receive that disclosure. This is not part of the process set out by the High Court and anyone on the receiving end of such a request would be well advised to read both decisions carefully, as well as the SRA’s code of conduct. An application to the Supreme Court and/or primary legislation as suggested by the Court of Appeal seem likely to be the government’s next step.