Court of Appeal confirms junior civil servant names cannot be routinely redacted in judicial review proceedings

The Court of Appeal has confirmed that it is a breach of the duty of candour to redact the names of junior civil servants in disclosed documents in judicial review proceedings, unless there are “good and specific reasons” for doing so. However, it will usually be permissible to redact contact details if that is thought to be useful.

The decision arose from an appeal from the decision of Swift J (explained further here) in an interlocutory judgment in a judicial review claim of the draft Houses in Multiple Occupation (Asylum-Seeker Accommodation) (England) Regulations 2023. This sought to remove premises the Home Secretary uses to accommodate asylum seekers in exercise of his powers under the Immigration Asylum Act 1999 from the scope of the scheme of regulation for houses in multiple occupation contained in Part 2 of the Housing Act 2004. As it happens, the government withdrew the draft regulations on the eve of the hearing of the claim on the substantive issue, and so that issue will not be determined.

Duty of candour is a duty of explanation

The Court reiterated that the duty of candour is an obligation of explanation, i.e. to explain the reasoning process underlying the decision under challenge. The explanation may be given in witness statements, or by the disclosure of relevant documents, or both. If the respondent chooses to discharge the duty of candour by disclosure of documents, it is to be assumed that this is because they are relevant to the issues in the claim (para 22).

The Court explained the difference between judicial review proceedings and ordinary civil proceedings, noting that “[s]tandard disclosure under CPR 31.6 requires a party to disclose documents which adversely affect his or another party’s case, or support another party’s case, or on which the disclosing party relies, but there is no duty to explain the significance of documents; and no option of giving a summary or explanation as a substitute for disclosure” (para 24).

The role of names in judicial review

It was noted that junior civil servants (i.e. those below the rank of “Senior Civil Service”) comprise around 98% of the Civil Service as a whole. The effect of the government’s submission was that their identity could be withheld from a claimant unless there was a tenable allegation of bias or if there was another reason the identity of the individual bore on the issues in the case.

Bean LJ, giving the judgment of the court, said at para 27:

“The redaction of the names of everyone taking part in discussions at meetings or sending or receiving emails, even if excluding ministers and the top 2% of civil servants, would result in disclosed documents which were covered in black spaces. Such documents are far more difficult to understand than documents which give the names of those involved. Without ciphers the documents, especially email chains, might be barely intelligible; but the process of replacing the names with ciphers would often be extremely laborious. One would think that members of the Government Legal Department, even junior ones, had better things to do with their time. ... I agree with Swift J that it is glib to say that the only argument against redaction is that it may make a document ‘a bit less easy to read’ and that this counts for little when weighed in the balance against his arguments on relevance.”

When redaction is permissible

The starting premise is therefore that all parts of a disclosed document must be unredacted unless redaction is permissible.

As to permissible bases for redaction, the Court noted:

1. Contact details may be redacted if thought useful, but this cannot be used to justify redaction of names (para 28).
2. Parts of a document (for example a note of a meeting) which are concerned with wholly different subject matter from that in issue may be redacted (para 29).
3. While names cannot routinely be redacted, they may be for reasons of national security or where there is evidence of a real risk to the personal safety of the individual concerned (para 29). There is, however, no basis for a civil servant to have an expectation that their name should be withheld in judicial review proceedings as a matter of routine (para 32).

The Court concluded by noting:

“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” (para 36).

It is also noted that, although the judgment does not cite these decisions, it is consistent with Muuse v Secretary of State for the Home Department [2010] EWCA Civ 453 and Ganesharajah v Secretary of State for the Home Department [2014] EWHC 2428 (QB) in the unlawful detention context. Here, it was similarly held that it is important for the court to know the names of individuals involved in the relevant decision (albeit there other concerns arose given individuals may be called to give evidence).

However, the Court’s decision leaves open the question as to the role of relevance in redaction and, specifically, when it is permissible to redact a documents which contain “wholly different subject matter from that in issue”. Parties regularly differ as to what material is relevant to a claim and what may be different or the same “subject matter”. It is likely that this question will continue to be grappled with in further judgments.

Practical implications

In the High Court below, Swift J had set out (at para 43) guidance as to the proper procedure to be followed where redactions are sought. Although the Court did not expressly approve this paragraph, it did not demur from it and cited with approval paragraph 15.5.3 of the Administrative Court Judicial Review Guide 2023 which states:

“Parties should consider carefully whether the text being redacted is genuinely irrelevant. Text which explains the provenance and context of a document, such as the name of the sender, recipients or copy recipients of a document (even if these are junior officials) may be relevant. Without this information, it may be more difficult to understand the significance of the document. If a party wishes to redact such information from a disclosable document, an application should be made to the Court for permission to do so, explaining the reason for the redaction, where necessary with supporting evidence.”

The guidance set out by Swift J is consistent with this approach and expands on it in further detail. It is suggested that any party seeking to redact documents disclosed in judicial review proceedings would do well to follow it:

“A party disclosing a redacted document ought to explain the reason for the redaction at the point of disclosure. The explanation need not be elaborate; the simpler and shorter it can be the better. The explanation ought to be such that it affords the receiving party a sensible opportunity to decide whether to apply for disclosure of the document, unredacted. The approach taken by the Secretaries of State in this case, the provision of single word explanations, "relevance", "privilege" and so on, will rarely be sufficient. All will depend on context. I do not consider the approach I suggest will be unduly onerous for the disclosing party. Before deciding to provide a disclosable document in redacted form at all, the disclosing party will have given careful thought to the reason for redaction. It is neither unreasonable nor onerous to expect the disclosing party to reduce that reason, succinctly, to writing. A requirement to explain at the point when the documents are served reflects in part the provision made in CPR 79.24. That Rule has no application either to these proceedings or to the general run of judicial review claims, but is certainly a model for an efficient and pragmatic approach.”

The Court of Appeal’s judgment was R (IAB) v Secretary of State for the Home Department [2024] EWCA Civ 66 (accessible here).

This article was written by Charles Bishop, a public and administrative law barrister at Landmark Chambers.