Anonymity of junior civil servants in judicial review proceedings ‘inimical to open government’

R (IAB and others) v Secretary of State for the Home Department and Secretary of State for Levelling Up, Housing and Communities [2024] EWCA Civ 66.

In an important judgment concerning public authorities’ duty of candour, the Court of Appeal (Bean, Males, Lewis LJ) has robustly rejected the practice by central government of routinely redacting the names of junior civil servants when supplying disclosure in judicial review.

The issue arose in an ongoing judicial review, still before the High Court, concerning the lawfulness of regulations removing the requirement for houses in multiple occupation to be licensed if asylum seekers are to be placed there.  In discharge of its duty of candour the defendant Secretaries of State provided a number of decision-making documents, but made a number of redactions, including to the names of junior civil servants.  The High Court required the redactions to be justified.  As a preliminary issue in the ongoing judicial review, Swift J determined that it was impermissible for the Secretaries of State, as a matter of routine, to redact the names of junior civil servants. The matter was appealed to the Court of Appeal.

As the Court of Appeal described, the civil service “employs about half a million people, of whom approximately 2% are in the [Senior Civil Service].  The Government is asserting the right for the other 98% to remain anonymous, save in exceptional cases …” (at [2]).   In doing so, the Secretaries of State relied on arguments to the effect that there was no obligation to disclose names that were not “relevant”, and that non-disclosure helped protect the privacy and safety of junior civil servants.

The Court of Appeal described the government position as “extraordinarily far-reaching”, and the logic of the argument, if accepted, would be that “documents disclosed in judicial review may have redacted from them any detail with is not potentially decisive of the issue in dispute” [26]. That approach would be inconsistent with the duty of candour.  Redactions may only be justified for parts of a document that “concerned with a wholly different subject matter” or, for example, “reasons of national security or where there is evidence of a real risk to the personal safety of the individual concerned”.  There was no justification for the redaction of names as a matter of routine (see [29]).

The approach taken to redaction by the Secretaries of State had been “inimical to open government and unsupported by authority.  If Parliament takes the view that members of the Civil Service have a general right to anonymity in judicial review litigation then it should enact a primary statute to that effect” (at [36]).

The judgment is available here.

The Respondents were represented by Laura Dubinsky KC, Sam Jacobs and Alice Irving of Doughty Street Chambers, and Chris Knight of 11KBW instructed by Duncan Lewis Solicitors.