R (IA & others) v Secretary of State (S/S) Home Department & S/S Levelling up, Housing and Communities (November 2023)

JUSTICE intervened in the case of R (IA & others) v S/S Home Department & S/S Levelling up, Housing and Communities, heard on 8 November 2023 in the High Court.

JUSTICE intervened on a single issue in the case: the redaction of the names of ‘junior civil servants’ by the Government from documents disclosed in judicial review proceedings. The term ‘junior civil servant’ is a broad one, and may include political Special Advisors, who are classed as temporary civil servants.

The Government is seeking to establish a new legal norm that junior civil servants’ names be redacted by default, despite these names appearing in documents the Government itself has identified as relevant to the case. JUSTICE will argue that this sets a dangerous precedent and is unlawful.

JUSTICE’s position is that automatically removing a class of public servants’ names from public scrutiny would undermine the fairness of proceedings for claimants. It would also undermine the principle of open justice, which allows the public and the media to scrutinise and understand legal proceedings in order to maintain trust and confidence in our justice system.

Fiona Rutherford, Chief Executive of JUSTICE, says, “Facing uncomfortable scrutiny in the Covid inquiry and with people’s trust in our core institutions deteriorating, the Government now seeks automatic anonymity for junior civil servants by the back door. This is a step towards less transparency and less accountability of those in public office.

“Open justice – the public’s ability to check, investigate, and understand legal proceedings – is a guiding principle of UK law. It must be protected. Allowing the Government to redact names en masse would erode open justice, undermining fairness, trust, and, ultimately, the rule of law.”

Our most senior courts have repeatedly stressed that the greatest threat to open justice arises from the courts creating new exceptions to transparency by changing court practices – exactly what the Government is trying to do in this case.

The Government’s approach is a demand for the Court to create a new exception to the open justice principle, which courts have no power at common law to do. Such exceptions are for Parliament.

In its submissions, JUSTICE suggests the correct approach to such redactions is on a case-by-case basis using a two stage process:

  • First, the court should consider whether fair disclosure under the “duty of candour” requires that the names be disclosed to the claimant and the court. JUSTICE believes that, if a document is relevant, the names in it will almost always be relevant too: knowing who created a document, who edited it, who approved it and when will almost always help the claimant and the court understand the document and its role in government decision-making.
  • Second, if names are relevant, the court can consider what steps, if any, it should take to prevent those names from entering the public domain. As the law dictates, open justice must guide these decisions: any use of anonymity must be strictly necessary in the interests of justice and based on evidence in that case.

Notes to Editors

  • JUSTICE is a cross-party law reform and human rights organisation working to strengthen the justice system in the United Kingdom. It has a long history of shaping the UK’s legal system. 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.
  • 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.
  • JUSTICE’s submissions focus 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.
  • The seminal case of Scott v Scott [1913] AC 493 established a number of fundamental principles which remain the corner stones of the open justice principle today. These include that the starting point is that of open justice and the burden lies on the party seeking to persuade the Court to derogate from open justice to persuade it to adopt that exceptional course. The only exception to the open justice principle permitted at common law is where the departure is strictly necessary because hearing the case in public would frustrate or render impractical the administration of justice. However, it was clear that courts do not have the power at common law to create new exceptions to the open justice principle; that can only come about through legislative action by Parliament. As Lord Shaw put it at p.478, “Courts of justice must stand by constitutional rule. The policy of widening the scope of secrecy is always a serious one; but this is for Parliament, and those to whom the subject has been consigned by Parliament, to consider.”
  • 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 is represented pro bono by Freshfields Bruckhaus Deringer LLP and Guy Vassall-Adams KC (Matrix Chambers).
  • JUSTICE’s submissions can be read here.
  • Please direct queries to press@justice.org.uk