Reported Case

Duncan Lewis successful as Respondent against government’s appeal to the Court of Appeal in an important case on redacting the names of civil servants in disclosed documents.

Duncan Lewis had brought a judicial review, on behalf of eight asylum seeker clients, to challenge the government’s proposals to pass regulations removing the requirement for new accommodation occupied by asylum seekers to have a houses in multiple occupation (“HMO”) licence. The Defendants in this case are the Secretary of State for the Home Department and the Secretary of State for Levelling Up, Housing and Communities.

In the course of these proceedings, the Defendants disclosed large amounts of records regarding the proposals, but had redacted, amongst other information, most of the names of “junior civil servants”. This category covers all those below the “Senior Civil Service” grade – it includes around 98% of all civil servants (of whom there are around half a million), including many with the word “senior” in their job title and who have significant responsibilities.

The Claimants objected to the redaction of these names. Swift J handed down a judgment following an interlocutory hearing in R (IAB) v Secretary of State for the Home Department [2023] EWHC 2930 (Admin). The defendants appealed that judgment, and their appeal was heard by the Court of Appeal on 24 January 2024.  

The government argued that they were not required to disclose this information, as it was not directly relevant to the issues being decided by the High Court. They also argued that junior civil servants had a reasonable expectation that information such as their names would not be made public, and that this could expose them to a risk of harassment.

The judgment concluded in summary;

• As part of its duty of candour, the government was required to explain documents relevant to the case, not simply disclose them;
• Redaction as the norm and a general rule is contrary to the government’s duty of candour;
• Redacting large amounts of information from disclosed records as standard practice risks undermining the public’s confidence in the fairness and accuracy of the legal scrutiny of decisions made by public bodies;
• Redacting large numbers of names in disclosed correspondence makes it very difficult to understand the decision-making process, who the authors of written messages are and the relationship of different messages in a chain to each other;
• Even if junior civil servants did in fact have an expectation that their identities would not be made public, this would not be a reasonable expectation;
• The government had speculated about the risk to civil servants through having their names disclosed, but had provided only limited evidence of this occurring and had not shown why this risk could not mitigated through other means;
• There is no logical reason why junior civil servants should have this particular protection over other groups of people named in judicial review proceedings; and
• Ruling in the defendants’ favour would entail a new departure from the principle of open justice, which requires authorisation by Parliament.

The Court of Appeal unanimously dismissed the government’s appeal and have since refused their permission to appeal to the Supreme Court. The Court of Appeal determined that it is not permissible for the government, as a matter of routine, to redact the names of civil servants outside the Senior Civil Service from documents disclosed in judicial review proceedings.

Angelo Monni, solicitor and part of Duncan Lewis’ public law team representing the claimants says:

“This judgment is a significant defeat for the government, and will have major implications for a large number of cases. It is a much-welcome rejection of one of the increasing number of attempts by the state to limit scrutiny of decision makers, often in relation to vitally important issues that affect vast numbers of people. In the underlying High Court challenge to which this appeal relates, for instance, the decision being challenged would, in effect, potentially deprive tens of thousands of vulnerable asylum seekers of basic protections regarding living standards, safety and overcrowding. It is of crucial importance that we and the court are able to properly scrutinise the decision-making process of public bodies, in cases such as this”.

The final hearing in the underlying HMO judicial review is due to be heard in the High Court on 7 and 8 February 2024.

The legal team at Duncan Lewis includes Jeremy Bloom, Angelo Monni and Manini Menon. In the Court of Appeal hearing, Duncan Lewis had instructed Laura Dubinsky KC, Alice Irving and Samuel Jacobs of Doughty Street Chambers, and Christopher Knight of 11KBW. For the underlying HMO judicial review in the High Court, the counsel team working with Duncan Lewis include Laura Dubinsky KC, Zia Nabi, Michael Spencer, Sarah Steinhardt and Alice Irving, all of Doughty Street Chambers.

Duncan Lewis’ award-winning public law team holds top tier rankings in the Legal 500 and Chambers directories and has been involved in high-profile cases such as the Rwanda challenge, Manston House, and the Brook House detention centre inquiry.

Find full details of this case on Bailii’s website here.