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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Secretary of State for the Home Department & Anor v IAB & Others, R (On the Application Of) [2024] EWCA Civ 66 (02 February 2024) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2024/66.html Cite as: [2024] WLR 1916, [2024] WLR(D) 43, [2024] EWCA Civ 66, [2024] 1 WLR 1916 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
(KING'S BENCH DIVISION, ADMINISTRATIVE COURT)
THE HON. MR JUSTICE SWIFT
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE MALES
and
LORD JUSTICE LEWIS
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(1) SECRETARY OF STATE FOR THE HOME DEPARTMENT (2) SECRETARY OF STATE FOR LEVELLING UP, HOUSING AND COMMUNITIES |
Appellants |
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- and - |
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THE KING ON THE APPLICATION OF IAB & OTHERS |
Respondents |
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-and- |
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JUSTICE |
Intervener |
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Laura Dubinsky KC, Christopher Knight, Sam Jacobs and Alice Irving (instructed by Duncan Lewis) for the Respondents (Claimants)
Guy Vassall-Adams KC and Eleanor Mitchell (instructed by Freshfields Bruckhaus Deringer) for the Intervener
Hearing date : 24 January 2024
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Crown Copyright ©
Lord Justice Bean :
"5) The usual approach to disclosure of documents across government is to identify members of the SCS and to include their contact details, consistent with the publication of those details in the Civil Service Yearbook, but not to do so for junior officials. On occasion this principle may not have been observed in respect of junior officials, either through error or conscious decision (perhaps because the name was considered relevant), but the expectation remains that junior officials are entitled to a greater degree of protection from personal exposure than their SCS colleagues. This may be described as an expectation of confidentiality.
6) Conversely there are rare occasions on which even the details of SCS officers are redacted, where it is considered that not doing so would expose those officers to particularly high risks. This is subject to legal advice that disclosure is required.
7) In many instances it is a trivial task for a person to infer the email address of a junior official once their name is known. Those with a relatively common name have a limited measure of protection from the inclusion of a disambiguating factor in their email address, but those with less common names have no such protection. For example, there are five men named Philip Smith with active Home Office email addresses but only one Phillip Smith.
8) There is also a risk in all cases, even if small, that the disclosure of names will undermine the welfare of civil servants, for example through harassment by communications sent directly to them. Within my own command I have a Senior Presenting Officer ("SPO") who has regularly received abusive communications from a person whose appeal he presented before the Upper Tribunal ("UT"), before the underlying appeal progressed to the senior courts. SPOs are Senior Executive Officers, three grades below the SCS.
9) Knowing the name of the SPO, and wrongly holding him responsible for all the consequences of the adverse immigration decision, the appellant was able to indulge in a campaign of harassment. The abuse progressed to the point that earlier this year I had to instruct the Government Legal Department to make clear to the appellant that any further instances would be met with both civil action and referral to the police for investigation of possible offences of harassment and/or malicious communications."
"11. While junior civil servants - namely those at grades up to and including Grade 6 - do perform important advisory and management functions, they do not fulfil decision making roles, and accountability for advice or recommendations they may help provide always rests with a senior civil servant. It is on that basis that the names of senior civil servants are routinely disclosed, and those of junior civil servants are not. The exception to this approach would be if the identity of one or more junior officials was directly relevant to the claim before the Court, which applies in this case only to the Home Office policy lead, Tahira Shah. This is dealt with separately by the Home Office witness statement.
12. Redacting the names of junior civil servants helps protect their privacy and safety, as part of our duty of care, especially relating to cases that are contentious and may attract public attention. This can prevent them from becoming targets of unwarranted personal blame, and through that, harassment, threats or retaliation, which can adversely affect their welfare. SSLUHC is concerned that junior officials have an expectation of confidentiality, and therefore routine disclosure of this sort retroactively and without specific cause will undermine this reasonable expectation without junior officials having had any opportunity to adjust their behaviour accordingly. A change to this long-held position could lead to this becoming more routine and have an adverse effect on Government policy delivery.
13. I understand from Mr Andrews of the GLD that in recent years there have been examples of names and contact details of civil servants entering the public domain in association with contentious decision-making, resulting in their identification with the decision concerned on social and even mainstream media. In one specific case, this involved the publishing of Mr Andrews' correspondence on behalf of GLD. This exposed Mr Andrews to offensive messages from members of the public. The civil servants involved in these examples, and Mr Andrews, a relatively junior GLD lawyer, were simply carrying out their public duties pursuant to Government policy and were in no position publicly to defend themselves on their own account, which makes this particularly concerning. Whether or not the relevant individuals had the same expectation of privacy as junior civil servants, the incident is illustrative of the general risks.
14. In my view, the specifics of this case and the policy being challenged has the potential to be contentious, given it relates to the provision and quality of asylum accommodation. This specific policy has already been subject to media scrutiny and active engagement on social media. There is a heightened risk of harassment, or unwanted attention in the event that the names of junior civil servants are disclosed.
15. More generally, redaction of the names of junior civil servants encourages open communication within Government. Officials in the department conduct their work on the understanding and expectation that their names will not enter the public domain where this is not necessary. If junior civil servants fear their names may be disclosed in legal cases, it could have a chilling effect on government as they might be hesitant to express concerns or provide candid advice, which could hinder effective decision making, or more widely discourage participation in public service.
16. Different considerations apply in relation to senior civil servants whose names and positions are routinely published by their departments. As a result, they are publicly identifiable and associated with the work of a particular department, and accordingly their expectations of privacy are different to junior officials.
17. I am aware of the recent judicial criticism of redactions in cases such as FMA & Others v SSHD [ 2023] which indicate that the names and related information of officials should not generally be redacted from official documents when they are disclosed pursuant to the duty of candour. On the basis of advice and precedent, the names of junior civil servants were not considered relevant to this claim or disclosable. I recognise that it is important in applying redactions that there is no material effect on the intelligibility of the disclosed material. To that end, care has been taken that all email chains contained within the disclosure bundles shared are easy to follow. For example, job titles (where included within the email at all) and domain names (i.e. '@levellingup.gov.uk or @homeoffice.gov.uk') are retained in all disclosure."
"4. DHSC, and HMG more widely, has a general approach of applying redactions to the names of individuals below Senior Civil Servant level in public-facing documents, in order to protect junior staff who are often not key decision makers. For example, for any and all responses to Freedom of Information requests, we consistently apply a section 40(2) exemption (personal information) to avoid the release of this information.
5. Junior civil servants therefore have a fair expectation that in the course of performing their roles, especially under instruction from more senior civil servants, they will not be vulnerable to their names or other personal details being released in relation to the work that they do, particularly if this is on sensitive areas. It is incredibly important for the Department's ability to empower these junior civil servants to effectively perform their roles, to be able to protect them from exposure in public documents that might invite criticism. By contrast, Senior Civil Servants operate under the expectation and understanding that as senior decision-makers, they invite a higher level of scrutiny and accountability, including the release of their names in public documentation.
6. In the instance of this specific judicial review, the Court will be aware of the high volume of individuals named throughout an even higher volume of disclosed documents. The vast majority of junior civil servants whose names appear in these documents are not relevant to the facts of the case (at times they are even simply in copy on an email chain), let alone decision makers in the matters that the Court is concerned with.
7. If the Court were to allow this application, it would be disproportionately distressing to the vast majority of junior civil servants whose names would be released, due to the high likelihood of media scrutiny and harassment connected to this claim.
8. Considering that the majority of these individuals were volunteers who offered to support Government and the general public in the emergency COVID-response, releasing their names and exposing them to this level of scrutiny could negatively impact the Government's ability to draft effective junior civil servants into such emergency/high profile roles in future.
9. Releasing these names within the confines of a confidentiality ring helps to maintain protection from public exposure and scrutiny for these civil servants, whilst still allowing the Claimants to follow the relevant trails of evidence."
"12. Two points of context are material. The first is that it is well-established that the duty of candour is an obligation of explanation rather than simply an obligation of disclosure. The substance of the obligation is well put by Sir Clive Lewis in his "Judicial Remedies in Public Law" 6th edition 2021, at paragraph 9-098. The obligation exists to ensure that a defendant explains, whether by witness statements, or the provision of documents, or a combination of both, the reasoning process underlying the decision under challenge. In the present case the Secretaries of State have, to date, chosen to discharge their candour obligation by disclosure of the documents in the four disclosure bundles. No witness statements have been provided. The second point of context is the criterion for disclosure of documents in judicial review proceedings. The standard applied by the court when asked to decide whether disclosure of a document is required is whether disclosure is necessary for the fair and just determination of an issue in the case: see Tweed v Parades Commission for Northern Ireland [2007] 1 AC 650 per Lord Bingham at paragraphs 3 and 4, Lord Carswell at paragraph 38, and Lord Brown at paragraph 52.
13. It follows that the correct premise is that by making the disclosure they have already made, the Secretaries of State accept that disclosure of those documents is necessary for the fair and just disposal of the issues in this case or, at the least, per Lord Bingham at paragraph 4 of his speech in Tweed, that the disclosed documents are "significant to its decision". In this case the documents disclosed, which evidence the decision-making process were, no doubt, disclosed in support of the Secretaries of State's response to the challenges on the Tameside ground: the Secretaries of State will rely on these documents to support their case that the decisions rested on proper enquiry into and consideration of relevant matters. This is the context within which the Secretaries of State's general submission on relevance must be considered.
14. The practice of redacting, of blanking-out parts of documents disclosed in litigation on the ground that the part redacted is irrelevant, is long-established. One obvious situation is where a part of a disclosable document does not concern the subject matter of the litigation. The position in claims under CPR Part 7 goes significantly further. In GE Capital Corporate Finance v The Bankers Trust [1995] 1 WLR 172, Hoffmann LJ stated (at pages 174B and 175G and H):
"It has long been the practice that a party is entitled to seal up or cover up parts of a document which he claims to be irrelevant …
… In my view, the test for whether on discovery part of a document can be withheld on grounds of irrelevance is simply whether that part is irrelevant. … There is no additional requirement that the part must deal with an entirely different subject matter than the rest.
The Peruvian Guano test must be applied to the information contained in the covered-up part of the document, regardless of its physical or grammatical relationship to the rest. Relevant and irrelevant information may, as in this case, be contained in the same sentence. Provided that the irrelevant part can be covered without destroying the sense of the rest or making it misleading, a party is permitted to do so."
15. The Secretaries of State's submission on relevance relies on the logic explained by Hoffmann LJ. The submission is to the effect that notwithstanding that each document under consideration was properly disclosable, it is then possible to remove by redaction any part of the document that does not directly bear upon one or the other of the Claimants' grounds of challenge. This includes the names of the civil servants, though could also include much else.
16. The logic that drives the Secretaries of State's submission extends well beyond the mere redaction of the names of civil servants outside the Senior Civil Service. It would permit redaction of the name of any and every civil servant, save where the identity of the person went to the legality of the decision, and would permit the removal of any part or word in the text of a document that did not in some way directly concern a ground of challenge. Moreover, the same reasoning would apply for all public authorities before the courts in all judicial review claims; the submission made does not identify any logical distinction between civil servants in government departments and persons employed by local authorities or by any other decision maker whose powers are derived from public law.
17. I accept that the outcome of the grounds of challenge in this case will not depend either on the identity of the decision-maker or of any other person involved in the decision-making process. The Claimants do not contend otherwise. However, I do not consider the correct approach to redaction of disclosed documents in judicial review pleadings can be driven only by the purity of Hoffmann LJ's logic. What is required to discharge the obligation of candour when a public authority chooses to meet that obligation by disclosure of documents must, at the least, be fully informed by the purpose of the candour obligation. Redaction, sentence by sentence or line by line, as a matter of course, runs against the grain of an obligation aimed at ensuring public authorities responding to judicial review claims should explain the reasoning underlying the decision under challenge. ..."
"17...This explains the premise and extent of the duty of candour. A document that has been disclosed in judicial review proceedings ought not, absent good reason, be redacted on grounds of relevance in any way that impairs either the actuality or the appearance of a "cards face upwards" approach. So far as concerns the relationship between the courts and public authorities described by Sir John Donaldson (no longer a "new" relationship), the "cards face upwards" reference also makes the point that appearance has a part to play, not the least because the premise for disclosing the document at all is that disclosure is necessary for the fair and just determination of the case.
18. Redaction leads to significant practical difficulties. The present case is an example of a common situation where email exchanges and other contemporaneous documents are disclosed to explain a decision-making process. Most decisions made within central government now involve significantly sized groups of civil servants. On any occasion one civil servant within the group might be the sender of the message, might be the recipient of the message, or might (usually, will probably) be copied in. Sometimes (as in this case), the civil servants within the group are spread across different government departments. At the least, redacting names makes the decision-making process and the significance of each document disclosed more difficult to understand. In some instances, it may obscure the significance of a document almost completely. When correspondence and other documents are disclosed for the purpose of evidencing a decision-making process it will rarely be the case that it will not assist the court's understanding of that process and the decision itself to know by whom or to whom documents were sent, forwarded, or copied. In most cases, when this information is redacted, any outsider's understanding of the documents (and for this purpose the court is an outsider) is significantly hampered. Misunderstanding and misinterpretation become commonplace. When documents are disclosed, and parties then rely on them by including them in the hearing bundle, the court is under a practical obligation to consider those documents with a view to making sense of how the information in the documents bears upon the legality of the decision under challenge. All this is made much more difficult and much more time-consuming when (for example) successive strings of email correspondence, each pages long, are entirely anonymised. The same point applies to names redacted in the body of correspondence or other documents. All such redactions only detract from the intelligibility of the document and impair achievement of the purpose for which the document was disclosed in the litigation.
19. The Secretaries of State's response, that any concerns are about no more than "making reading documents a little bit easier", is glib. First, ensuring that documents disclosed in litigation to explain a decision-making process are readily intelligible is an objective worth achieving for its own sake. It is notable that the Secretaries of State's proposal to deal with problems of intelligibility (both in this case, and generally) was to replace redacted names with a list of ciphers; an approach that would be laborious, prone to error, and even when error-free would only add a new layer of complexity to the task of understanding the narrative of the decision-making process from the documents disclosed.
20. Second, an approach to compliance with the obligation of candour that, as a matter of routine, hides detail that aids the court's understanding of the public authority defendant's explanation of the decision under challenge, is antithetical to the purpose of the candour obligation. Third, the appearance created by the Secretaries of State's approach is a matter of genuine concern. Reasonable and well-informed members of the public will readily understand that there are occasions (few in number) when documents disclosed in aid of the fair and just determination of legal disputes must be redacted as some information in the documents is sensitive. Considerations of national security and instances where public interest immunity can be asserted are obvious examples, and there will be others. However, a practice by which information, not sensitive per se, is routinely removed from documents risks undermining confidence that appropriate legal scrutiny is taking place under fair conditions, because it will be apparent that the routine redaction builds in a possibility that the sense or significance of a document may be overlooked.
…
22. Drawing these points together, the principle that ought to guide the approach in judicial review proceedings is that absent good reason to the contrary (which might, for example, include that the information in question was subject to a legal obligation of confidentiality), redaction on grounds of relevance alone ought to be confined to clear situations where the information redacted does not concern the decision under challenge. The names the Secretaries of State seek to protect are not in this class. Names of civil servants should not routinely be redacted from disclosable documents; redaction should take place only where it is necessary for good and sufficient reason. This conclusion is consistent with the obligation of candour and with the general principle of cooperation between public authorities and the court that is one foundation for judicial scrutiny. This approach will also guard against the practical difficulties caused by excessive redaction…
23. The question that remains is whether, set against this general position, there is sufficient reason to support the Secretaries of State's submission that the names of civil servants outside the Senior Civil Service should, as a matter of routine, be redacted from disclosable documents.
24. The Secretaries of State advance several points relying on the contents of the witness statements referred to at paragraph 10 above. The first is that the names of civil servants outside the Senior Civil Service should be removed because they have a "reasonable expectation of confidentiality" i.e., that civil servants have a general expectation that the fact they have been involved in a particular decision-making process will remain confidential even when the decision is subject to legal challenge. This expectation does not arise from any matter connected to the subject matter of any decision; it rests simply on the fact they are civil servants.
25. I do not consider any such general expectation (even assuming it exists in practice) could be reasonable. No such expectation would attach to any person as a matter of general employment law. Moreover, when at work civil servants are not involved in anything that can be described as a private activity, they are exercising public functions as part of the public service of the country. It is also material that while the Secretaries of State's submission refers to the class of "junior civil servants" this label was applied only to distinguish them from the civil servants working in grades comprising what the government refers to as "the Senior Civil Service". Therefore, the distinction between "junior" and "senior" civil servants is akin to the distinction between junior and leading counsel and is not necessarily any indication of age or experience. The class of "junior civil servants" includes civil servants with significant responsibilities."
Submissions of the Appellants
"The names and identities of JCS [junior civil servants] will generally be irrelevant. The mere fact that a civil servant was involved at some point in considering or discussing the issues relating to the decision does not render their identity relevant. Nor does being named (e.g., as a recipient of an email) in a document which has been disclosed. Relevance depends on the fact in question (here, e.g., the name/identity of the recipient of an email) bearing in a material way on the issues in dispute."
Submissions of the Respondent Claimants
"The Appellants' argument is circular: the Appellants generally redact, consequently junior civil servants have a reasonable expectation of confidentiality, consequently the Appellants can continue to redact."
Submissions by the Intervener
Discussion
The nature of the duty of candour
"… a very high duty on public authority respondents, not least central government, to assist the court with full and accurate explanations of all the facts relevant to the issue the court must decide."
"The duty of good faith and candour lying in a party in relation to both the bringing and defending of a judicial review application is well established. The duty imposed on public bodies and not least on central government is a very high one. That this should be so is obvious. Citizens seeking to investigate or challenge governmental decision-making start off at a serious disadvantage in that frequently they are left to speculate as to how a decision was reached. As has been said, the Executive holds the cards. If the Executive were free to cover up or withhold material or present it in a partial or partisan way the citizen's proper recourse to the court and his right to a fair hearing would be frustrated. Such a practice would engender cynicism and lack of trust in the organs of the State and be deeply damaging of the democratic process, based as it is upon trust between the governed and the government, a point underlined in the Ministerial Code published by the Cabinet Office in July 2005 which in paragraph 1 stresses the overarching duty of ministers to comply with the law, to uphold the administration of justice and to protect the integrity of public life. The Code also requires ministers to be as open as possible with Parliament and the public, refusing to provide information only when disclosure would not be in the public interest which should be decided in accordance with the relevant statutes and the Freedom of Information Act 2000 ...
A breach of the duty of candour and the failure by the Executive to give a true and comprehensive account strikes at the heart of a central tenet of public law that the court as the guardian of the legal rights of the citizen should be able to rely on the integrity of the executive arm of government to accurately, fairly and dispassionately explain its decisions and actions."
"Where a public authority relies on a document as significant to its decision, it is ordinarily good practice to exhibit it as the primary evidence. Any summary, however conscientiously and skilfully made, may distort. But where the authority's deponent chooses to summarise the effect of a document it should not be necessary for the applicant, seeking sight of the document, to suggest some inaccuracy or incompleteness in the summary, usually an impossible task without sight of the document. It is enough that the document itself is the best evidence of what it says. There may, however, be reasons (arising, for example, from confidentiality, or the volume of the material in question) why the document should or need not be exhibited. The judge to whom application for disclosure is made must then rule on whether, and to what extent, disclosure should be made."
"The withholding of parts of documents involves a process known as "redaction". It is not the norm and arises for consideration only when dealing with matters such as legal professional privilege, PII, national security, international relations or other similar concerns. Redaction requires a word by word, line by line, examination of sensitive material by subject experts or lawyers and is an extremely time-consuming but important task. Redaction should always be reversible, so as to leave the original document unmodified. The process of redaction is a process of removal. Its purpose is to extract material that the department is not prepared to disclose because it is privileged, or subject to a PII claim, or to statutory constraints on disclosure, or because it is irrelevant but sensitive. The material extracted should be only the material for which a right or duty to withhold can be maintained."
"Parties should consider carefully whether the text being redacted is genuinely irrelevant. Text which explains the provenance and context of a document, such as the name of the sender, recipients or copy recipients of a document (even if these are junior officials) may be relevant. Without this information, it may be more difficult to understand the significance of the document. If a party wishes to redact such information from a disclosable document, an application should be made to the Court for permission to do so, explaining the reason for the redaction, where necessary with supporting evidence."
"One further matter needs mention. The Home Secretary's initial open disclosure included documents redacted to remove the names of the civil servants who had written them, including redaction of the names of the officials who had prepared the March 2022 consideration minute and the January 2023 consideration minute. The redactions were said to be on the ground of "relevance". Documents were served in that form without the permission of the court. These redactions should not have been made. It is one thing for a document that genuinely deals with different matters, some relevant to the litigation others irrelevant, to be redacted on grounds of relevance. It is another matter entirely for a document that is relevant to be edited to remove information that goes to explain the document's provenance and context. One example which has recently become common is when emails are redacted to remove details such as the name of the sender, names of recipients, or the names of persons copied into the message. Such information should not be redacted on grounds of relevance. Such redactions, at the least, make the significance of documents more difficult to understand and, in some instances, they may obscure the significance of a document almost completely. If a party wishes to redact such information from disclosable documents, an application to the court should be made and the application should explain the reason for the proposed redaction, and when necessary set out supporting evidence. In this case, the names and job details of the civil servants who had assessed the information relevant to the not conducive to the public good question in the consideration minutes were redacted. That information was not irrelevant and ought not to have been redacted. If, to any extent, a practice is developing by which such information is routinely removed from documents that are disclosable in judicial review proceedings, that practice should cease."
"I was unpersuaded that there is a legitimate reason to replace names with pretend names, job descriptions or letters… I have seen no reasoned consideration of its legitimacy. Well-being matters, for everyone in every decision-making. I have no evidence of what engendered an understanding and expectation; nor why civil servants are so different from others (in this case, prison psychiatrist and offender managers). I wrote my judgment giving a natural narrative. Naming people who are part of the story is benign. Open justice is promoted. There is no special treatment. Judges should not write a judgment asking: 'is there a necessity for giving this name?' The question has to be whether there is a necessity for protecting someone's identity. Everyone was doing their job, to the best of their ability. Nobody is imperilled. I cannot see why anyone would be inhibited from doing their job, to the best of their ability, another time. I cannot see that naming people and how they did their jobs is contrary to any legitimate interest."
Lord Justice Males:
Lord Justice Lewis: