Government should not routinely remove names of civil servants in judicial review disclosure

The High Court has told the government that they should not be routinely redacting the names of civil servants when disclosing documents in the course of judicial review proceedings. The substantive judicial review challenge is to the Houses in Multiple Occupation (Asylum-Seeker Accommodation) (England) Regulations 2023 which exempts asylum accommodation from the need to obtain a HMO licence and the associated safeguards that provides. However this decision was an interim one concerning disclosure only. The case is IAB & Ors, R (on the application of) v Secretary of State for the Home Department & Secretary of State for Levelling Up [2023] EWHC 2930 (Admin).

Background

Permission was granted for the challenge against the Home Secretary but was initially refused for the challenge against the Levelling Up Secretary. The rejected grounds were renewed to an oral permission hearing and permission on further grounds against the Levelling Up Secretary was granted there.

There have been three separate disclosures of documents from the defendants so far in the proceedings, amounting to over 500 pages. Some documents were provided with redacted sections, without an explanation as to why. Some of the redactions appear from the context to be the names of junior civil servants. Following a request by the court, the defendants provided a list explaining whether each of the redactions was on the grounds of relevance or legal professional privilege.

The issues to be decided by the high court relating to these redactions were as follows:

1. Is it permissible for the Secretaries of State, as a matter of routine, to redact the names of civil servants outside the Senior Civil Service from documents disclosed in proceedings?
2. In these proceedings, are the Secretaries of State entitled to redact material from a document dated 13 January 2023 on grounds of legal professional privilege?
3. Was a redaction to another document made on grounds of relevance, properly made?
4. The procedure that a disclosing party should take when seeking to disclose redacted documents into judicial review proceedings.

Justice intervened on issues 1 and 4.

First issue: routine redactions of civil servant names

On the first issue, the defendants argued that the names of civil servants were outside the duty of candour obligation and so could be redacted on the grounds of relevance unless the identity of the civil servant involved in a decision was related to the legality of the decision. It was anticipated that challenges on this basis would be infrequent and could include, for example, where bias is alleged. The court did not accept these arguments and reminded the defendants that the duty of candour imposes a very high duty on public authorities.

Swift J set out the general position on redactions at [17] to [19], reiterating the importance of public authorities explaining the reasoning underlying the decision under challenge and the “significant practical difficulties” that can result from redactions.

The court then went on to consider the defendant’s submission that the names of the civil servants should be redacted as a matter of routine. The Secretaries of State argued that the civil servants had a “reasonable expectation of confidentiality”. The court rejected this, stating that they are “exercising public functions as part of the public service of the country”. The court also pointed out that the description of “junior civil servants” was not indicative of experience and actually included people with significant responsibilities.

Two real life examples were provided by the defendants in support of their arguments for anonymity. The first was of a Government Legal Department lawyer who had received offensive messages from members of the public after correspondence from him had been made public. A second example was of a Home Office Presenting Officer who had received “abusive communications” from an unrepresented party following an appeal. The court described these examples as “nowhere close” to compelling and not suggestive of a widespread problem [27].

The court also said that in this case specifically the chances of such behaviour were very slim and that “public discussion of government policy is a long way distant from any possibility that civil servants might be harassed. On this point in this case, no specific evidence is advanced.” The same conclusion was extended to the names of accommodation provider contractors working with the Home Office, the court saying that there was no good reason for a blanket approach to be taken to redactions of their names.

Second issue: redaction on the grounds of privilege

The second matter to be determined was a redaction of an email dated 13 January 2023 on the grounds of legal professional privilege. The email was sent by the Managing Director of Ready Homes to a Home Office civil servant and the redacted section followed the words “Finally, a piece of legal advice…”. In making the redaction, the lawyer stated that it was accepted that the court would need to review and determine whether the redaction was appropriate. It was argued that while the advice was not given in relation to this litigation, it was given in contemplation of a different kind of litigation in which the Home Secretary would have a common interest.

No witness evidence was filed in support of the claim that the redacted material was privileged and the court said that the assertion of privilege was not sufficiently evidenced. The court declined an offer to inspect the redacted material for itself on the basis that knowledge of the circumstances in which the email was sent would be needed and there was no indication that the wider context would be available. The defendants also lost on this point.

Third issue: redaction of letter from the Levelling Up Secretary

The third redaction issue to be determined concerned a letter sent by the Levelling Up Secretary to the Prime Minister in November 2022 which included the following statement “I have seen no evidence on how licensing is a barrier, and this move [words redacted] risks incentivising lower quality housing. [words redacted]”. The reason given for this redaction was that they were “political views expressed personally by the Secretary of State”, made before the decision under challenge and irrelevant to it. The judge rejected this explanation as not enough to show that the redaction was irrelevant.

It was also argued that the redacted words were confidential under the principle of cabinet collective responsibility. This too was rejected as most of the letter had been disclosed and there was no reason to believe that the redacted words had a greater claim to confidentiality under this principle than the parts of the letter that had been disclosed.

Fourth issue: procedure

The court was also asked to determine the procedure to be adopted where a party wants to disclose redacted document in a judicial review. Specifically, guidance was sought on the need to explain redactions at the point of disclosure.

The court said that explanations should be provided at the point of disclosure and that the explanation should be short and simple, with the caveat that single word explanations as used in this case will rarely be enough. The explanation must allow the party receiving the disclosure to decide whether they should challenge the redactions and ask for unredacted disclosure. As consideration will have already been given as to whether or not to make the redaction, the court said that this requirement was considered reasonable.

Where redactions are made to documents that are exhibited to a witness statement, it may be appropriate to explain the redactions in the statement, depending on the reasons.

Conclusion

The court ordered that all four documents were disclosed in unredacted form.

It is very useful to have clarity on the redactions of civil servants’ names, hopefully this will result in an immediate change in practice by the government. As for the guidance on the procedure to be followed, this is also much needed, although we will need to see how “short and simple” works in practice and whether proper explanations are provided as to any redactions that are made.