Identity matters

In his leading judgment in Secretary of State for the Home Department and another v R (on the application of IAB & others) [2024] EWCA Civ 66, [2024]All ER (D) 128 (Mar), Lord Justice Bean branded the government’s routine practice of redacting civil servants’ name from documents for disclosure in judicial review proceedings ‘inimical to open government and unsupported by authority’.

Understandably, this finding may have caused a stir among ‘junior’ civil servants. They may well be left anxious that a society tending increasingly towards criticism and vitriol will target them if their names and roles are revealed. On another view, however, redaction was never the right tool for protecting potentially embattled public servants and their expectations have not been adequately managed. It may be that an approach formulated for the freedom of information regime has penetrated the very different forum of the Administrative Court.

The starting point in judicial review proceedings is transparency. Public
bodies are obliged by the duty of candour, said Bean LJ, to ‘explain the reasoning process underlying the decision under challenge’, and this ‘very high duty’ is often best discharged by disclosing contemporaneous documents. Many of these mention the people involved. Such documents need to be intelligible, which becomes harder the more information about their ‘provenance and context…such as the name of the sender, recipient or copy recipients’ is blacked out, even if it is unclear whether these names are relevant. It is only appropriate routinely to redact straightforwardly irrelevant material.

Another feature is that judicial review courts perform a constitutional role, policing the lawfulness, reasonableness and fairness of executive action. Among their unshakable principles is an abhorrence of blanket and arbitrary policies. Then there is the height at which the Home Secretary pitched her case in IAB. It is remarkably bold to suggest that everyone below the 2% of grades comprising the senior civil service should generally enjoy anonymity, especially if ‘no logical distinction between the two groups’, as Bean LJ put it, can be convincingly demonstrated.

It is little wonder that the Administrative Court and Court of Appeal balked at endorsing a government practice in danger of being sweeping, blanket and arbitrary, and risking obfuscating the provenance and context of at least some decisions being challenged.

Mr Justice Swift has since confirmed, in R (on the application of MTA) v Secretary of State for the Home Department and others [2024] EWHC 553 (Admin), [2024] All ER (D) 73 (Mar), that ‘[it] is not open to parties to  judicial review claims to attempt to contract out of [the IAB] obligations’ by consent order.

Documents disclosed by the parties in judicial review proceedings are protected by the prohibition on collateral use set out in r 31.22(1) of the Civil Procedure Rules, whereby any ‘party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed’, except with the permission of the court or the disclosing party and whoever the document belongs to, or if the document has been read or referred to at a public hearing. Rule 31.22(2) permits applications to the court to make restrictions on use even then. Rule 5.4C complements these provisions with a framework for controlling the material non-parties may obtain from court records.

If the government wishes to protect the identities of junior civil servants from anyone beyond the court and the parties to a judicial review, it can therefore argue for restrictions on access to, and use of, documents containing this information.

Compelling justification

If there are good reasons for not even telling parties to the proceedings the names of civil servants who are part of the story, IAB confirms that applications to redact identifying information may be made. Assuming there is a compelling justification, these will probably succeed. Obvious examples include, as per Bean LJ, ‘where there is evidence of a real risk to the personal safety of the individual concerned’ or ‘reasons of national security’.

A practical illustration is provided by R (on the application of L1T FM Holdings UK Ltd and another) v Secretary of State in the Cabinet Office [2024] EWHC 386 (Admin), [2024] All ER (D) 168 (Feb), where Mr Justice Swift granted an application to redact the names of GCHQ officers and certain National Crime Agency officers to protect national security, but refused another application covering junior civil servants more generally on the basis of insufficient evidence, saying that ‘there was no national security assessment to the effect that all such names needed to be redacted’.

The bar to clear may appear high. In IAB, Bean LJ cited Mr Justice Fordham, who suggested that ‘[t]he question has to be whether there is a necessity for protecting someone’s identity’. But that may not be especially difficult where real consequences for specific individuals are reasonably foreseeable. Another option in appropriate cases may be for the government mainly to discharge the duty of candour through
witness evidence, making limited reference to individual names, without unnecessarily disclosing all background contemporaneous documents.

If the identities of junior civil servants are revealed in litigation notwithstanding these frameworks, and the result is harassment or even threats, the option is there to seek an injunction or to vigorously prosecute those responsible and deter similar behaviour. If a party to judicial review litigation is responsible, in breach of a court order, that party may face proceedings for contempt.

Conclusion

Junior civil servants should take comfort that potentially powerful legal tools exist for protecting their welfare if disclosure of their identities may put them at risk. Government should use these to minimise any chilling effects IAB may have on civil servants’ giving of candid advice, supporting of effective decision-making or continued willingness to participate in public service.

Practical changes to civil service working practices might sometimes also assist, such as recording substantive contributions to decision-making in freestanding documents that state their provenance and context, and list those contributing by role/responsibility rather than by name.

This article was first published by the New Law Journal on 17 May 2024 and can be found on its website: www.newlawjournal.co.uk

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