Last week, the cross-party law reform charity JUSTICE intervened in the case of R (IA & others) v S/S Home Department & S/S Levelling up, Housing and Communities in the High Court. Today [17/11/23] the Court ruled against the Government and in line with JUSTICE’s submissions.
In the case, the Government proposed to redact routinely any names outside the senior civil service from documents disclosed in judicial review proceedings; a policy which risked hiding the names of external contractors and political Special Advisors as well as that of junior civil servants. Judicial review is one of the central ways people can challenge the Government’s decisions.
JUSTICE intervened to oppose such routine redaction.
- JUSTICE argued that names matter; they often help the court grasp how policies and decisions were made, and can be key to properly understanding a document. A general policy of withholding names undermined the government’s ‘duty of candour’ in judicial review cases, and risked the court’s ability to deliver justice.
The Court agreed. The judge, Sir Jonathan Swift, held thatroutinely hiding details that would aid understanding of documents is antithetical to this duty of candour, and such routine redaction could risk undermining confidence that appropriate legal scrutiny is taking place under fair conditions.
- JUSTICE argued that, as public servants, the work of all civil servants is manifestly public, not private. It therefore opposed the government’s suggestion that junior civil servants had a “reasonable expectation of confidentiality” in their work and could bypass the usual rules for requesting anonymity. The court agreed.
- The court agreed with JUSTICE that fear of publicity alone was not a justification for redactions.
Today’s case comes four months after the government’s failed legal attempt to prevent the disclosure of politicians’ WhatsApp messages to the Covid-19 inquiry. In a sign of how seriously the Government was taking today’s case, they sent their most senior lawyer, the First Treasury Counsel or “Treasury Devil”, Sir James Eadie KC, to argue it.
Fiona Rutherford, Chief Executive of JUSTICE, says, “For democracy to work, we must be able to check and understand government decision-making – today’s judgment safeguards the fairness and transparency of this process.”
JUSTICE is grateful for the pro bono representation of Freshfields Bruckhaus Deringer LLP and Guy Vassall-Adams KC (Matrix Chambers).
Notes to editors:
- JUSTICE is a cross-party law reform and human rights organisation working to strengthen the UK justice system. It has a long history of success on this terrain: for example, the Ombudsman system was set up on the recommendation of previous JUSTICE Working Parties, and JUSTICE were at the forefront of training practitioners and public bodies when the Human Rights Act 1998 was introduced. JUSTICE’s recent landmark report on threats to the UK’s rule of law can be read here.
- JUSTICE intervened on the issue of redaction only in this case; it is not participating in the wider substantive issues in the case, which concern the challenges of several asylum seekers to the Draft Houses in Multiple Occupation (Asylum-Seeker Accommodation) (England) Regulations 2023, which would exempt asylum support accommodation from House in Multiple Occupation (HMO) licensing rules.
- Today’s judgment maintains a 100-year-strong line of case law that JUSTICE successfully relied on, which holds that though public trial may cause some humiliation or pain for those involved, it is the best way of securing justice and maintaining public confidence in the justice system (Scott v Scott  AC 493).
- JUSTICE is an experienced third-party intervener with extensive expertise in intervening in cases involving important matters of public interest, especially those concerning the protection of fundamental rights. It has intervened in cases on matters of public importance, including before the Court of Appeal, the House of Lords, the UK Supreme Court, and the European Court of Human Rights. Notably, JUSTICE has long and significant experience in intervening in cases on matters of fairness and open justice, including:
- Secretary of State for the Home Department v MB  QB 415 (Court of Appeal) and  1 AC 440 (House of Lords), concerning the natural justice rights of persons subject to control orders pursuant to Article 6 of the European Convention on Human Rights (“ECHR”).
- A and Others v the United Kingdom (2009) App no. 3455/05, concerning the compatibility of the Special Immigration Appeals Commission special advocate procedure with Articles 5(4) and 6 of the ECHR.
- AF and others v Secretary of State for the Home Department  UKHL 28, concerning whether persons subject to control orders were entitled to know the substance of the case made against them.
- Secretary of State for the Home Department v Assistant Deputy Coroner for Inner West London  EWHC 3098, judicial review proceedings regarding whether a coroner has power to exclude properly interested persons from hearings at which sensitive evidence relating to the Security Service would be received
- .Al-Rawi v The Security Service  EWCA Civ 482 (Court of Appeal) and  UKSC 34, (Supreme Court),  1 AC 531, concerning the absence of power in ordinary civil litigation to hold closed material procedures without statutory authority.
- U3 v Secretary of State for the Home Department  EWCA Civ 811.
- JUSTICE’s submissions in this case focused on the impact of this practice on the fundamental constitutional principle of open justice, which protects the legitimacy of the justice system and safeguards the ability for the public, and the media on its behalf, to scrutinise the justice system and the actors in it, particularly state actors. Open justice is a central tenet of the rule of law and has been an indelible feature of our justice system for centuries.
- All of the new exceptions to open justice since Scott v Scott have resulted from Parliamentary intervention. When the courts were invited to develop a major new exception to open justice for closed material procedures in national security cases, the Supreme Court held that they had no power at common law to do so: Al Rawi v Security Service  3 WLR 388.
- JUSTICE’s submissions can be read here.
- Please direct queries to firstname.lastname@example.org