High Court Rules Against Redaction of Civil Servants' Names and Emphasizes Transparency in Judicial Review Proceedings

Citation: [2023] EWHC 2930 (Admin)
Judgment on

Introduction

This article provides an analysis of the case “IAB & Ors, R (on the application of) v Secretary of State for the Home Department & Anor” heard before Mr Justice Swift in the High Court of Justice, King’s Bench Division, Administrative Court. It elucidates the legal principles applied and links them directly to the relevant parts of the summary of the case, which addresses procedural issues related to disclosure and redaction of documents in the context of judicial review proceedings.

Key Facts

The claimants, in this case, challenged the Secretary of State’s decision to make new regulations concerning the housing of asylum-seekers. During the proceedings, the Secretaries of State disclosed documents with redacted sections. The redactions included the names of junior civil servants and other content the defendants claimed were either irrelevant or protected by legal professional privilege (LPP). This led to the challenge concerning whether such redactions were permissible. Mr Justice Swift was required to assess the appropriateness of these redactions and determine whether they were justified under procedural and legal principles applicable to judicial review proceedings.

The case revolved around several key legal principles:

  1. Duty of Candour: Quoting Laws LJ in Secretary of State for Foreign and Commonwealth Affairs v Quark Fishing Ltd [2002] EWCA Civ 1409, Mr Justice Swift reaffirmed that defendants in judicial review proceedings have a high obligation to assist the court with full and accurate explanations of all the facts relevant to the issue the court must decide.

  2. Relevance for Disclosure: The standard for disclosure in judicial review proceedings, said by Lord Bingham in Tweed v Parades Commission for Northern Ireland [2007] 1 AC 650, is whether disclosure is necessary for the fair and just determination of an issue.

  3. Redaction Principles: Referring to GE Capital Corporate Finance v The Bankers Trust [1995] 1 WLR 172, the court clarified the established practice of redaction based on irrelevance, also noting a more nuanced approach may be required in public law compared to private law settings.

  4. Common Interest and Legal Professional Privilege (LPP): The court evaluated the requirements for LPP to be applicable and highlighted the importance of providing evidence to substantiate a claim for privilege, with reference to the Court of Appeal’s judgment in WH Holdings Ltd v E20 Stadium LLP [2018] EWCA Civ 2652.

  5. Procedural Fairness and the Appearance of Justice: The judgments make reference to principles of open justice and the relationship between public authorities and the court, stressing the importance of confidence in legal scrutiny and maintaining standards of public administration mentioned by Sir John Donaldson in R v Lancashire County Council Exp. Huddleston [1986] 2 All ER 941.

Outcomes

Mr Justice Swift determined that:

  1. Redaction on Relevance alone: The routine redaction of junior civil servants’ names and other professionals associated with a government decision was not permitted, as it impedes understanding of the decision-making process and does not align with the obligation of candour or the cooperation between public authorities and the court.

  2. Redaction Claim for LPP: The claim for redaction on LPP grounds was not substantiated with sufficient evidence, leading the court to not accept this claim.

  3. Redaction Claim on Grounds of Irrelevance: The court refused to accept the redaction of sections of a document on the basis of irrelevance, as the disclosed contents of the document were deemed to have the potential to impact the understanding of the decision-making process and were not sufficiently confidential by virtue of cabinet collective responsibility.

  4. Disclosure Procedure: The court outlined the proper procedure for disclosing redactions, requiring an explanation at the point of disclosure, ideally within a witness statement, to provide a more considered approach that aids the receiving party in understanding the document.

Conclusion

The case underscores the imperative for transparency and comprehensive disclosure in judicial review proceedings, thereby reinforcing the principles of public administration and legal scrutiny. The High Court’s emphasis on the duty of candour and the requirement for careful consideration before redaction serves as a reminder to public authorities of their responsibility to present information before the court in an unobscured manner. The prescribed approach to dealing with redacted documents represents a new benchmark that strikes a balance between protecting genuinely sensitive information and upholding the principles of open justice and fairness in the judicial review process.