- BY Sonia Lenegan
Government Legal Department told by High Court to keep “rather basic point” in mind when advising on redactions
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The government continues to try to maintain its ability to redact the names of junior civil servants in judicial review proceedings and the courts continue to tell them that they cannot do this. The latest instalment is MTA, R (On the Application Of) v Secretary of State for the Home Department & Ors [2024] EWHC 553 (Admin)
The substantive judicial review
This was a challenge to decision to refuse MTA’s request for resettlement under the Afghan Citizens Resettlement Scheme. The claimant challenged the decision to restrict pathway three of the scheme in the first year of its operation to women, girls, religious and other minorities who are at highest risk of human rights abuses and dehumanising treatment by the Taliban.
He argued that his application should have been considered on its own terms, by reference to the risk that he was facing in Afghanistan. The court said that the Secretary of State “must be afforded significant latitude to decide how to prioritise the availability of a finite resource”. The judicial review was dismissed.
Redactions
In these proceedings, the Government Legal Department filed a consent order signed by the parties, stating that “the Defendants be granted permission to maintain the redactions of the names of the civil servants” in the evidence provided with the witness statements.
This was done after the Court of Appeal’s decision in IAB where the court said that it was a breach of the duty of candour if documents are disclosed with the names of junior civil servants redacted. I mentioned in that write up that I had heard of the Government Legal Department asking lawyers to provide undertakings before receiving unredacted materials, and now we have them using consent orders to try to circumvent the Court of Appeal’s decision.
Conclusion
In this decision, the court concluded by saying that: “It is not open to parties to judicial review claims to attempt to contract out of these obligations. I hope that in future those who advise Secretaries of State will have this rather basic point well in mind”.
These cases all seem to be ending up in front of Swift J, who is visibly losing patience with this issue, describing the conduct in this case as “it is no significant stretch of the imagination to conclude that the order proposed was in the nature of a bold attempt to outflank the judgment of the Court of Appeal”. The Government Legal Department needs to (finally) take this on board.
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