Jack Smyth represents the Secretaries of State.
This is a judicial review claim brought in respect of the government’s new policy of moving asylum seekers out of expensive hotel accommodation into HMOs. The policy seeks to get rid of local authority standards by creating a regime of national minimum standards and inspection. It is intended to boost the supply of HMO places.
Permission has been granted to bring the claim and a final hearing is listed for February 2024.
Judgement was handed down by Mr Justice Swift on 17 November. It concerns disclosure and the extent to which the government can a redact documents.
The court adopted a maximalist approach. It was critical of the government’s broad and generous approach to redaction. It found that the government cannot routinely redact the names of junior civil servants. The judge made clear that the obligation is upon the disclosing party to explain why a redaction has been made. The explanation should be contained within a witness statement.
The judge noted at para 43:
A party disclosing a redacted document ought to explain the reason for the redaction at the point of disclosure. The explanation need not be elaborate; the simpler and shorter it can be the better. The explanation ought to be such that it affords the receiving party a sensible opportunity to decide whether to apply for disclosure of the document, unredacted. The approach taken by the Secretaries of State in this case, the provision of single word explanations, “relevance”, “privilege” and so on, will rarely be sufficient. All will depend on context. I do not consider the approach I suggest will be unduly onerous for the disclosing party. Before deciding to provide a disclosable document in redacted form at all, the disclosing party will have given careful thought to the reason for redaction. It is neither unreasonable nor onerous to expect the disclosing party to reduce that reason, succinctly, to writing. A requirement to explain at the point when the documents are served reflects in part the provision made in CPR 79.24. That Rule has no application either to these proceedings or to the general run of judicial review claims, but is certainly a model for an efficient and pragmatic approach.
The implications of this judgement are profound. It will mean that public bodies are likely to have to disclose more documents rather than fewer. They will be entitled to make fewer redactions and those which are made will need to be justified. This is likely to make the task of resisting judicial review proceedings more onerous, time consuming and expensive.
The judgment can be found here
