Does the Civil Service’s Expectation of Anonymity Clash with the Duty of Candour?
A recent Court of Appeal judgment*, handed down on 2 February 2024, has considered the implications of the duty of candour on the Civil Service in cases of judicial review. The question posed was whether the Secretaries of State are permitted to redact the names of junior civil servants (those in grades below the Senior Civil Service, regardless of age or experience) from documents disclosed to respondents, whilst still complying with their duty of candour in proceedings for judicial review. Roz Sullivan and Joseph Hill report on the judgement below.
The Challenge
In a judicial review claim dealing with asylum seekers and household licences, the Secretaries of State disclosed hundreds of redacted documents. The names of civil servants below the rank of Senior Civil Service were amongst these redactions. The Secretaries of State argued that junior civil servants do not fulfil decision making roles and the disclosure of names could undermine their welfare. The Respondents contested that the Government is not entitled to make such redactions.
The Outcome
In considering the works of Sir Clive Lewis, the Court held that “the duty of candour is an obligation of explanation”, and that such an obligation cannot be discharged by a respondent in cases of judicial review through disclosing documents which are covered in redacted names.
Redacting names may be justifiable in cases of national security or where there is evidence of a real risk to the personal safety of those involved, but the result of such blanket identity redaction is that documents are unintelligible, hard to navigate, and their significance may be obscured. Bean LJ held that, if Parliament is of the view that there is a general right to anonymity for members of the Civil Service in cases of judicial review, “it should enact a primary statute to that effect”.
What Next?
It will be interesting to see how the Government reacts to this decision and interacts with cases of judicial review going forward. Will the Government seek to appeal to the Supreme Court? Will members of the Civil Service be comfortable with their names being disclosable, or will Parliament step in to protect their anonymity? In any event, for now, a respondent in matters of judicial review is not justified in making blanket redactions of the names of officials in its disclosure.
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*1 [2024] EWCA Civ 66
