JUSTICE is today [Weds 24/1/24] intervening in an appeal to argue that the Government should not be able to routinely redact all names outside of the senior civil service from documents disclosed in judicial review proceedings. This policy risks hiding the names of external contractors and political Special Advisors as well as that of junior civil servants.
In November 2023 the High Court ruled in line with JUSTICE’s intervention in the case of R (IAB & others) v S/S Home Department & S/S Levelling up, Housing and Communities in the High Court. The Government is today appealing to the Court of Appeal against that decision.
Judicial review is one of the central ways people can challenge public bodies’ decisions. For example, the Parole Board’s release of the black cab rapist John Worboys, the Department for Work and Pensions’ ‘bedroom tax’ policy with respect to partners of people with severe disabilities, and the unlawful use of facial recognition technology by South Wales police were all halted by judicial review.
JUSTICE will intervene in today’s appeal to oppose such routine redaction of names, arguing 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 undermines the government’s ‘duty of candour’ in judicial review cases and risks the court’s ability to deliver justice.
- As public officials, civil servants’ work is public not private.
- Fear of publicity alone is not a justification for redactions.
Ellen Lefley, Lawyer at JUSTICE, says, “Judicial review only works if public bodies are candid; without that candour the individual will rarely if ever be able to successfully understand and challenge state decisions. Names are often vital for this – be they the names of outside consultants providing advice or powerful Special Advisors pushing a certain course. By supplying courts with documents full of blacked-out names, the Government would muddy the waters of state accountability to everyone’s detriment.”
JUSTICE’s submissions in this case will focus on the impact of the redaction practice on the fundamental constitutional principle of open justice. Open justice 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. It follows, JUSTICE will argue, that new broad exceptions to open justice like the proposed routine redaction of names in this case, are not a matter for Government policy nor for the courts, but for Parliament alone.
JUSTICE is grateful for the pro bono representation of Guy Vassall-Adams KC and Eleanor Mitchell (Matrix Chambers) and Kate Gough, Guy MacInnes-Manby and Joe Masri (Freshfields Bruckhaus Deringer LLP).
Notes to Editors
- For queries or interview requests please contact press@justice.org.uk.
- 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 is intervening 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.
- November’s judgment maintained 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 [1913] 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 [2007] QB 415 (Court of Appeal) and [2008] 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 [2009] 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 [2010] 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 [2010] EWCA Civ 482 (Court of Appeal) and [2011] UKSC 34, (Supreme Court), [2012] 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 [2023] EWCA Civ 811,
- 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 [2011] 3 WLR 388.
- JUSTICE’s submissions can be read here.