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A thread on the duty of candour (d of c) in judicial review. It matters. https://twitter.com/georgeperetzqc/status/1291364170382880769
You can find a very good explanation of what it is and how it works in the Treasury Solicitor’s Guidance. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/285368/Tsol_discharging_1_.pdf
In summary: when its decision is challenged, government is must be “open and honest in disclosing the facts and information needed for the fair determination of the issue.”
Importantly, “The duty extends to
documents/information which will assist the claimant's case
and/or give rise to additional (and otherwise unknown)
grounds of challenge”.
documents/information which will assist the claimant's case
and/or give rise to additional (and otherwise unknown)
grounds of challenge”.
So if the claimant challenges a decision on ground X, but the government also knows that it is shaky for reason Y, unknown to the claimant, the government must disclose the facts relevant to Y.
You’ll see at the front of the Guidance various powerful judicial statements as to why the d of c matters. And NB it is why ordinary rules of disclosure in civil litigation don’t apply in JR proceedings.
The d of c ensures that the government is accountable for the lawfulness of its decisions, and cannot hide unlawfulness by concealing what it knows.
It is taken seriously. Government lawyers have to make disclosure obligations clear. And if Ministers or officials refuse, they have to go up the chain (to the AG). And Government barristers are also professionally required to ensure disclosure is made.
Note too: the existence of the d of c helps to ensure lawful decision-making. If the reasons why a decision is going to be taken are bad in law, lawyers will point that out: and, critically, add that those bad reasons will have to be disclosed on any challenge.
Against that background, look at 4(a) and (b) of the terms of reference of the government’s Review of Administrative Law: https://assets.publishing.service.gov.uk/media/5f27d3128fa8f57ac14f693e/independent-review-of-administrative-law-tor.pdf
Notably, disclosure is described (only) as a “burden” on government. No mention of why it is important in terms of accountability and ensuring lawfulness. And the d of c is to be looked at “particularly as it affects government”: it’s all just a burden obstructing government.
As to the thought that you have less candour “in particular in relation to ‘policy decisions’”, what does that mean, and what is its intellectual basis?
Assume “policy decisions” means something like “decisions affecting lots of people”: isn’t it, in particular, important that the government should be properly accountable for the lawfulness of such decisions?
There is a long list of things to keep a suspicious eye on here: but fiddling around with the d of c should be near the top of the list.
