Secretary of State for the Home Department & Anor v IAB & Ors, R (on the application of)

The Court of Appeal considered whether it is permissible, as a matter of routine, for respondents in judicial review proceedings to redact the names of civil servants below Senior Civil Service (SCS) grade from documents disclosed in support of their case. The court held that routine redaction of such names is incompatible with the duty of candour which requires public authorities to explain the reasoning process underlying the decision under challenge and to disclose documents necessary for the fair and just determination of issues (see Tweed v Parades Commission).

The court distinguished ordinary civil litigation principles permitting redaction of irrelevant parts of documents (GE Capital and Shah) because judicial review defendants have an extra explanatory duty. The court accepted that limited redactions may be justified in particular circumstances (for example national security, recognised public interest immunity, or a real risk to personal safety) and that contact details may often be redacted, but rejected the appellants' proposal that the names of the great majority of civil servants be withheld as a matter of routine. The appeal was dismissed.

This appeal arises from a dispute about disclosure practice in an impending judicial review challenge to regulations affecting licensing of houses in multiple occupation for asylum seekers. The High Court (Swift J) had ordered disclosure of documents without redaction of the names of civil servants below Senior Civil Service, rejecting the respondent Secretaries of State's practice of routinely redacting such names. The Court of Appeal heard an expedited appeal limited to the disclosure issue; the merits of the underlying policy challenge were not before the court.

Nature of the application: The claimants sought disclosure of documents without redaction of the names of junior civil servants. The respondents (the Secretaries of State) had disclosed over 500 pages in four tranches with most non-SCS names redacted and relied on witness evidence asserting an expectation of confidentiality and risks of harassment; they proposed alternatives such as ciphering or disclosure into a confidentiality ring.

Issues framed:

• Whether the routine redaction of the names of civil servants outside the SCS from documents disclosed in judicial review proceedings is permissible.
• How the duty of candour and the Tweed test (necessity for fair and just determination) apply to disclosure and redaction in public law proceedings.
• The scope for exceptions (for example national security, public interest immunity, or real personal safety risk) and acceptable alternatives (contact-detail redaction, confidentiality rings, ciphering).

Reasoning and conclusions: The court emphasised that the duty of candour in public law is an obligation of explanation: documents disclosed are assumed to be significant and aid the court's understanding of the decision-making process. While civil litigation authorities such as GE Capital and Shah support redaction for irrelevance in ordinary disclosure regimes, those authorities do not justify a routine class-based anonymisation in judicial review where an explanation is required. The court endorsed Swift J's findings that blanket or routine redaction of non-SCS names undermines intelligibility, the appearance of openness and the proper operation of judicial scrutiny. It accepted that specific, evidenced reasons can justify redaction (national security, public interest immunity, demonstrable real risk to safety) and that contact details may often be withheld, but held that the appellants had not established a general entitlement to withhold the names of junior civil servants. The appeal was dismissed and the High Court's order upheld. The court noted guidance (Treasury Solicitor and Administrative Court Judicial Review Guide) and recognised that Parliament could legislate if anonymity were to be authorised in general.

Appeal dismissed. The court held that routine redaction of the names of civil servants outside the Senior Civil Service from documents disclosed in judicial review proceedings is not permitted save where there is good and specific reason (for example national security, public interest immunity, or a real risk to personal safety); the duty of candour and the necessity test from Tweed require disclosure sufficient to explain the decision-making process and preserve intelligibility.

Appeal from the High Court (King's Bench Division, Administrative Court), Swift J: [2023] EWHC 2930 (Admin). Permission to appeal was granted by the judge. Hearing in the Court of Appeal on 24 January 2024; judgment handed down 2 February 2024.