The King on the application of IAB and Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Swift |
| Judgment Date | 17 November 2023 |
| Neutral Citation | [2023] EWHC 2930 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2593/2023; AC-2023-LON-002143 |
and
[2023] EWHC 2930 (Admin)
Mr Justice Swift
Case No: CO/2593/2023; AC-2023-LON-002143
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Laura Dubinsky KC, Michael Spencer and Alice Irving (instructed by Duncan Lewis) for the Claimants
Sir James Eadie KC, Jack Holborn and Jack Smyth (instructed by GLD) for the Defendants
Guy Vassall-Adams KC (instructed by Freshfields Bruckhaus Deringer LLP) for the Intervener
Hearing date: 8 November 2023
Approved Judgment
A. Introduction
These proceedings were commenced on 13 June 2023. The Claimants challenge a decision by the Secretary of State for Levelling Up, Housing and Communities (“the Levelling Up Secretary”) to make the Houses in Multiple Occupation (Asylum-Seeker Accommodation)(England) Regulations 2023 (“the Regulations”). The Regulations were laid before Parliament in exercise of powers under the Housing Act 2004. That was as long ago as 30 March 2023. They will be made and come into force only when approved by both Houses of Parliament. So far, such approval has not been sought, and the Regulations remain in draft. Put very briefly, if the Regulations come into effect, they will remove premises the Home Secretary uses to accommodate asylum claimants in exercise of his powers under the Immigration Asylum Act 1999 (“the 1999 Act”) from the scope of the scheme of regulation for houses in multiple occupation contained in Part 2 of the Housing Act 2004. This step is being taken in aid of an objective to increase the pool of accommodation available to Home Secretary for use by asylum claimants, and to reduce the need for him to resort to using hotels for that purpose. The Claimants also challenge what they describe as the Home Secretary's policy on how he will use the opportunity that the Regulations will provide.
Johnson J gave permission for the challenge directed to the Home Secretary but refused permission so far as the claim concerned decisions of the Levelling Up Secretary. At a renewed application for permission to apply for judicial review on 19 October 2023 I gave permission on some of the remaining grounds of challenge to the decision of the Levelling Up Secretary. In short summary, the grounds of challenge cover: whether under section 254 of the Housing Act 2004 the Levelling Up Secretary had the power to make the Regulations; whether decisions by each Secretary of State were made consistent with the Tameside obligation to consider relevant matters and to take reasonable steps to obtain relevant information so as to identify relevant matters (see [1977] AC 1014 per Lord Diplock at pages 1064H – 1065B); and compliance with the public sector equality duty.
This judgment concerns matters arising from disclosure made by the Secretaries of State. Although the permission stage of these proceedings has only recently concluded and the date for the Secretaries of State to file and serve Detailed Grounds of Defence and evidence has not yet passed, the Secretaries of State have already served three tranches of disclosure. The first came on 20 July 2023 under cover of the Secretaries of State's response to the pre-action protocol letter. The second came on 5 September 2023 when the Secretaries of State filed and served their Acknowledgement of Service and Summary Grounds of Defence. The third tranche of disclosure was served on 18 October 2023 (the day before the hearing of the renewed application for permission to apply for judicial review). In total the documents disclosed, across four bundles, run to more than 500 pages.
Each of the tranches of disclosure included redacted documents. Disclosure was given without explanation (either generally, or document by document) of why the passages had been redacted. In a skeleton argument filed for the hearing of the renewed application for permission to apply for judicial review on 19 October 2023, the Secretaries of State referred to redaction of the names of “junior civil servants” (by which they meant any civil servant outside the grades that comprise the Senior Civil Service, regardless of age or experience). While it was obvious from context that some of what had been redacted was likely to be names, it was equally obvious that other redactions were of other material. At my request the Secretaries of State provided a list (by reference to page numbers in the various disclosure bundles) stating whether these other redactions were on grounds of relevance or legal professional privilege (“LPP”). Since first provided, that list has gone through various iterations. None of the iterations has provided information beyond a bare label – “relevance”, “LPP” etc. The lists provided have not been easy to follow, primarily because of the different pagination applied to the documents in the disclosure bundles from time to time. Nevertheless, the lists have assisted the parties to discuss the appropriateness of the redactions made and, in large part, agreement has been reached.
The issues for me to decide are these. (1) Is it permissible for the Secretaries of State, as a matter of routine, to redact the names of civil servants outside the Senior Civil Service from documents disclosed in proceedings? (2) In these proceedings, are the Secretaries of State entitled to redact material from a document dated 13 January 2023 on grounds of legal professional privilege? (3) Was a redaction to another document made on grounds of relevance, properly made? (4) The procedure that a disclosing party should take when seeking to disclose redacted documents into judicial review proceedings. Issues (1) and (4) concern the general practice to be followed in judicial review proceedings. They fall for consideration in litigation challenging decisions that are entirely run of the mill in the sense that neither the decisions nor the decision-making process touch on any matter that could claim to be sensitive.
I have heard submissions from the Secretaries of State and the Claimants. In addition, I have had the benefit of written and oral submissions from Guy Vassall-Adams KC on behalf of Justice which, with my permission, intervened in these proceedings for the purposes of the hearing on issues (1) and (4) above.
B. Decision
(1) Redacting names of civil servants who are not members of the Senior Civil Service, and names of persons outside the civil service
The redactions occur across a range of documents disclosed in these proceedings. The names of those who have sent emails or other correspondence, have received them, or have been copied in to the same, have been removed. Names within the bodies of emails and correspondence have also been removed. The same approach has been applied to minutes of meetings. Some of the disclosed documents are submissions prepared by civil servants for consideration by ministers. Names have been removed from these documents too, including the names of those who wrote the documents.
The Secretaries of State's explanation is that the names redacted are the names of civil servants who are in Grades 6 or 7, or Executive Officer, or Administrative Officer grades, i.e. the grades below the Senior Civil Service. It is apparent that these names have been redacted in pursuance of a general approach that is now being applied, across government, in all claims for judicial review. In this instance, it is also apparent that names of persons working for contractors have been redacted. The contractors are companies who supply accommodation to the Home Office used to provide support for asylum claimants. For example, the name of the managing director of one contractor has been blanked out.
The submission for the Secretaries of State focussed on redaction of names of civil servants outside the Senior Civil Service. The submission made is a general submission; it does not depend on anything touching on the circumstances of the present case. The submission referred first to the duty of candour, the obligation on parties to judicial review proceedings, in particular on public authorities who are defendants in such proceedings, to ensure the court has sufficient information to determine the legality of any decision under challenge. The Secretaries of State submit that names of civil servants outside the Senior Civil Service fall outside the candour obligation and can be removed from all disclosable documents on grounds of relevance. Relevance permits this redaction in all cases save for those in which the identity of a civil servant involved in a decision or the decision-making process bears upon the legality of the decision under challenge. Grounds of challenge raising such a point will be infrequent; one example would be where a decision is challenged on grounds of bias, whether apparent or actual. Such situations apart, counsel for the Secretaries of State contended that any argument that these names ought not to be redacted from disclosable documents was no more than an argument in favour of “making reading documents a little bit easier” and, in this sense was somewhat trivial.
The Secretaries of State further submit that, relevance apart, there is good reason to remove names of civil servants outside the Senior Civil Service from all disclosable documents. This submission too, is made across the board. The Secretaries of State rely on statements made in these proceedings by Philip Smith, Head of Specialist Appeals and Litigation at the Home Office, and Joanna Key, Director General of Regeneration, Housing and Planning at the Department for Levelling Up, Housing and Communities, and on statements filed in an earlier case,...
To continue reading
Request your trial
-
L1T FM Holdings UK Ltd v Secretary of State in the Cabinet Office
...of State for the Home Department in R(IAB) v Secretary of State for the Home Department. That application was refused by me ( [2023] EWHC 2930 (Admin)); an appeal against that decision was dismissed by the Court of Appeal ( [2024] EWCA Civ 24 The effect of the judgment of the Court of Appe......
-
Michael Farley (formerly “CR”) v Paymaster (1836) Ltd (trading as Equiniti)
...them as and when required.” This principle was recently endorsed by Swift J in R (IAB) v Secretary of State for the Home Department [2023] EWHC 2930 (Admin) [28]–[29] (affirmed on appeal: [2024] EWCA Civ 122 Warby LJ provided a distillation of the principles concerning anonymity orders and......
-
XY v The Secretary of State for the Home Department
...J in IAB and others v Secretary of State for the Home Department and Secretary of State for Levelling up, Housing and Communities [2023] EWHC 2930 (Admin), Mr Evans undertook a reconsideration of the documents disclosed by the defendant in the present proceedings. In the course of that rec......