High Court judge rules against routine redaction of names of junior civil servants during disclosure

Whitehall departments cannot routinely redact the names of junior civil servants when documents are disclosed, Mr Justice Swift has ruled in the High Court.

This issue arose during a case known as IAB and others versus the Home Secretary and the Secretary of State For Levelling Up, Housing and Communities, which concerns challenges by several asylum seekers to the Draft Houses in Multiple Occupation (Asylum-Seeker Accommodation) (England) Regulations 2023.

This would exempt asylum support accommodation from house in multiple occupation licensing rules.

The Government had sought to withhold the names of junior civil servants but this led to an objection from legal campaign group Justice, which intervened in the case.

Swift J said in his judgment; “Disclosure was given without explanation (either generally, or document by document) of why the passages had been redacted. In a skeleton argument filed for the hearing of the renewed application for permission to apply for judicial review on 19 October 2023, the Secretaries of State referred to redaction of the names of ‘junior civil servants’.

“While it was obvious from context that some of what had been redacted was likely to be names, it was equally obvious that other redactions were of other material.”

The judge asked for a list stating whether these other redactions were on grounds of relevance or legal professional privilege, various iterations of which had been provided but “none of the iterations has provided information beyond a bare label ‘relevance’, ‘LPP’ etc.”

Swift J said he had to decide:

• 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?
• In these proceedings, are the Secretaries of State entitled to redact material from a document…on grounds of legal professional privilege?
• Was a redaction to another document made on grounds of relevance, properly made?
• The procedure that a disclosing party should take when seeking to disclose redacted documents into judicial review proceedings.

The judge said the Secretaries of State had suggested junior cvil servants might be at risk were their names disclosed, but called this “a counsel of despair”.

He explained: “Reasonable members of the public well understand that civil servants perform their duties of informing and advising and assisting ministers in the public interest.

“Ministers are responsible for policy. It is irrational to associate civil servants with, or hold them responsible for, ministerial decisions or decisions made in pursuit of policies set by ministers. The ordinary and proper course of litigation – in this case the treatment of disclosable documents – ought not to be altered for fear of the possibility that some people, likely few in number, either may not, or may choose not to understand.

“Social media provides the opportunity for all opinions, however wrong-headed, to be broadcast. Sometimes those with the least to say will shout it loudest. That is as it may be. But the general approach to the conduct of litigation cannot be dictated by fear of the baser instincts of a misguided few.”

He said no specific evidence had been advanced that civil servants might be harassed and the subject of asylum seekers’ support accommodation had been widely aired in public already.

Swift J said there was not sufficient reason to warrant the redaction of the names and the same applied to the names of those who appeared to be employed by contractors working with the Home Office

Turning to redactions made for legal professional privilege, Swift J said no witness statement had been provided to support this and he refused the Secretaries of State further time as “they have had ample time to prepare and file evidence”.

Swift J declined to review the redacted text “because the likelihood that inspection would make good either the claim to litigation privilege or the claim to common interest privilege seemed very remote indeed.

“Making good either claim in this case would require an appreciation of the circumstances in which the email communication was made. There is nothing to suggest that this would be apparent from any part of the redacted text.” He dismissed the case over legal professional privilege.

The redaction for relevance was said to be confidential because of the convention of cabinet collective responsibility.

But the judge said: “For the most part, the contents of the letter have been disclosed and there is no reason to think the part redacted that is in dispute has any greater claim to confidentiality on that ground than the remainder, for which any possible claim to confidentiality has been waived through disclosure.”

He said that while the redacted part might show that a Secretary of State expressed doubt about a proposed decision that was subsequently made anyway, it might still be relevant and “I can see no compelling reason to support redaction of the part that is now in issue.”

On the question of procedure for disclosures in a judicial review, Swift J said: “A party disclosing a redacted document ought to explain the reason for the redaction at the point of disclosure”

Justice said it had intervened because a policy to routinely redact any names outside the senior civil service risked hiding external contractors, political special advisors and junior civil servants during judicial review.

It said: “Our most senior courts have repeatedly stressed that the greatest threat to open justice arises from the courts creating new exceptions to transparency by changing court practices – exactly what the Government was attempting in this case.”

Mark Smulian