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.
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.
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 was attempting in this case.
In our submissions, JUSTICE suggested that 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.
On 17 November 2023, the Court ruled against the Government and in line with JUSTICE’s submissions.
- 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 that routinely 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.
JUSTICE is grateful for the pro bono representation of Freshfields Bruckhaus Deringer LLP and Guy Vassall-Adams KC (Matrix Chambers).