Redacting names of junior civil servants in disclosed documents does not fulfil duty of candour, Court of Appeal finds

The Court of Appeal has found the practice of Government departments redacting the names of junior civil servants when disclosed is "inimical to open government" and does not fulfil the duty of candour.

In The Secretary of State for the Home Department and the Secretary of State for Levelling Up, Housing and Communities v IAB & Others and JUSTICE (Intervener), Lord Justice Bean said he had been "struck by the robustness" with which previous judges in the High Court and the Administrative Court rejected the Government's arguments for routine redaction.

The dispute arose after several asylum seekers challenged the lawfulness of regulations removing the requirement for houses in multiple occupation to be licensed if asylum seekers are to be placed there.

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

In the High Court, Swift J heard arguments from the Secretaries of State that suggested junior civil servants might be at risk were their names disclosed.

However, the High Court judge found insufficient 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.

He also dismissed arguments from the Government that invoked legal professional privilege and the convention of cabinet collective responsibility.

At the Court of Appeal, Bean LJ described the appellants' submissions as "extraordinarily far-reaching".

He noted that the redaction of the names of everyone taking part in discussions at meetings or sending or receiving emails, even if excluding ministers and the top 2% of civil servants, would result in disclosed documents "covered in black spaces".

"Such documents are far more difficult to understand than documents which give the names of those involved", he said.

Without ciphers, the documents would be barely intelligible, and the process of replacing the names with ciphers would often be extremely laborious, the judge added.

He said he agreed with Swift J that it would usually be permissible to redact contact details if that is thought to be useful and added that there might be cases in which names should be redacted, for example, if it concerns national security.

Concluding, he accepted the respondents' submission that defendants in judicial review proceedings "do not fulfil their duty of candour if (save for good and specific reasons) they disclose documents with redactions of the names of civil servants".

He added: "I am struck by the robustness with which both Swift J, a judge of almost unparalleled experience of public law litigation both as Treasury Counsel and later as a judge of the Administrative Court, and Fordham J, another judge with an encyclopaedic knowledge of judicial review, have rejected the arguments for routine redaction. I entirely agree with them.

"The practice is inimical to open Government and unsupported by authority. If Parliament takes the view that members of the Civil Service have a general right to anonymity in judicial review litigation then it should enact a primary statute to that effect."

Lord Justice Males and Lord Justice Lewis agreed.

Adam Carey