The names of civil servants below the SCS should not be routinely redacted from documents disclosed in judicial review proceedings, the High Court has ruled.
In the case, R (IAB & others) v the home secretary and levelling up secretary, an ongoing judicial review which relates to asylum seeker housing, the government sought to routinely redact any names outside the senior civil service from proceedings documents.
The High Court ruled against the government in the case on Friday. The judge ruled: "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."
The government had argued that the names of civil servants at grades below the senior civil service should be removed because they have a “reasonable expectation of confidentiality" by virtue of being civil servants. It said redactions of the names of junior civil servants "encourages open conversation within government" and officials "conduct their work on the understanding and expectation that their names will not enter the public domain where this is not necessary".
The government also argued that if junior civil servants fear their names will be disclosed in legal cases, it could have a "chilling effect" on government as officials "might be hesitant to express concerns or provide candid advice, which could hinder effective decision-making, or may widely discourage participation in public service".
The judge said they did not consider the expectation of confidentiality to be "reasonable",adding: "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".
They also pointed out that the label “junior civil servants” includes civil servants with "significant responsibilities".
"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," they added.
The government had also argued that if civil servants become associated with contentious decisions they could become "targets of unwarranted personal blame and through that, harassment, threats, or retaliation”. It presented two examples: A GLD solicitor who received abuse from the public after his "correspondence" was published; and a Home Office official who, after acting as an advocate for the Home Office in Upper Tribunal proceedings, received “abusive communications” from the other party to the appeal.
But the judge said they did not find the examples "compelling", adding "in fact, they come nowhere close".
"The two examples in the evidence do not suggest any widespread problem, and there are no examples in the evidence to suggest that any practical problems have arisen because of the disclosed documents in this case," they said. They also said any risk could be remedied by removing email addresses and phone numbers from documents before they are disclosed.
"The general approach to the conduct of litigation cannot be dictated by fear of the baser instincts of a misguided few," they added.
Justice called the decision a “win for transparency”.
Fiona Rutherford, the charity's chief executive, said, “For democracy to work, we must be able to check and understand government decision-making – today’s judgment safeguards the fairness and transparency of this process.”
Judicial review is one of the central ways people can challenge government decisions.
In its submission to the court ahead of the decision, Justice argued that “names matter; they often help the court grasp how policies and decisions were made, and can be key to properly understanding a document”.
It said the work of all civil servants is “manifestly public, not private”, opposing the government’s argument that junior civil servants had a “reasonable expectation of confidentiality” in their work and could bypass the usual rules for requesting anonymity.
DLUHC and the Home Office had not responded to a request for a comment at the time of publication.