The recent judgment of the House of Lords in Tweed v Parades Commission for Northern Ireland  UK HL 53 sets out important guidance on the general framework within which applications for disclosure of documents in judicial review proceedings should be considered by the Courts.
An interlocutory application for disclosure of documents was made by the claimant, Mr Tweed, in the context of a judicial review challenge of a decision taken by the Parades Commission for Northern Ireland. The Parades Commission is a statutory body empowered to issue determinations in respect of particular proposed public processions in Northern Ireland. The decision in question related to the route of one particular proposed public procession. The Commision's decision confined the parade route to a very short stretch of road which the members of the parade regarded as very little different in effect from a complete ban on parading.
Mr Tweed's application for judicial review was based partly on a claim that the Commission's determination constituted a disproportionate infringement of his rights under the European Convention on Human Rights (ECHR), in particular Articles 9 (freedom of thought, conscience and religion), 10 (freedom of expression), and 11 (freedom of assembly and association). Subsequently, Mr Tweed's solicitors sought disclosure of specific documents from the Commission, including in particular copies of a police report and situation reports received by the Commission from its authorised officers. The Commission resisted disclosure of these documents.
Disclosure in Judicial Review
Their Lordships noted that the Courts in both England and Northern Ireland had developed an approach to disclosure in judicial review which was more narrowly confined than in private law actions. The basis of this approach was that disclosure should be limited to documents relevant to the issues emerging from the affidavits or witness statements (per R v IRC ex parte National Federation of Self Employed and Small Businesses Limited  AC 617). Lord Carswell, giving the leading judgment, observed that in building upon this foundation the Courts had developed a restrictive rule whereby they held that, unless there was some prima facie case for suggesting that the evidence relied upon by the deciding authority was in some respect incorrect or inadequate, it was improper to allow disclosure of documents, the only purpose of which would be to act as a challenge to the accuracy of the witness statement evidence (per R v Secretary of State for the Environment ex parte Islington LBC and the London Lesbian and Gay Centre  JR 121).
Lord Carswell noted that the reasons which had hitherto been regarded as providing grounds for maintaining these principles were two fold, namely (1) the obligation resting on a public authority to make candid disclosure to the Court of its decision making process, and (2) the undesirability of allowing "fishing expeditions", where a claimant for judicial review sought to obtain disclosure of documents in the hope of producing something out of which he could fashion a possible challenge.
Lord Carswell (with whom the rest of the House concurred) concluded that it would now be desirable to substitute for the rules hitherto applied a more flexible and less prescriptive principle which judged the need for disclosure in accordance with the requirements of the particular case, taking into account the facts and circumstances. His Lordship stated that disclosure would not arise in most applications for judicial review, as such applications generally raised legal issues which did not call for disclosure of documents. Even in cases involving issues of proportionality, such as the qualified rights under the ECHR, disclosure should be carefully limited to those issues which required it in the interests of justice. This object would be assisted if parties seeking disclosure continued to follow the practice where possible of specifying the particular documents or classes of documents which they required, rather than asking for an order for general disclosure.
Lord Carswell observed that under each of the three ECHR Articles relied upon by Mr Tweed, the acts of the public body concerned in imposing restrictions must be proportionate. The proportionality issue formed part of the context in which the Court had to consider whether it was necessary for fairly disposing of the case to order disclosure of documents. However proportionality did not give rise automatically to the need for disclosure of all documents; whether disclosure should be ordered would depend on the balancing of several factors of which proportionality was only one, albeit of some significance.
Applying these principles to the appeal, their Lordships ordered disclosure of the documents sought by Mr Tweed to the Judge considering disclosure, on the basis that the Judge should first inspect the full text of the documents sought in order to decide whether they would give extra assistance to Mr Tweed's case on proportionality such as to justify disclosure to him in the interests of fair disposal of the case.
Unlike ordinary civil proceedings brought under Part 7 of the Civil Procedure Rules, there is no automatic right to disclosure of documents in judicial review proceedings. Instead, the Court relies on the parties adopting an "all cards on the table" approach to the provision of relevant information and documents. The House of Lords' decision in Tweed v Parades Commission sets out important guidance on the circumstances in which applications for disclosure in judicial review will be granted by the Courts. All five members of the House emphasised that disclosure orders were however likely to remain exceptional in judicial review proceedings, even in cases raising proportionality issues, and warned that the Courts should continue to guard against what appeared to be "fishing expeditions" by claimants seeking further grounds of challenge.
Nonetheless, the decision marks a clear move away from the general rule that there must be a demonstrable contradiction, inconsistency or incompleteness in a decision-maker's evidence before disclosure will be ordered. In future, as Lord Carswell put it, "a more flexible and less prescriptive principle" will apply, leaving Judges to decide upon the need for disclosure depending on the facts of each individual case. On this approach, we can expect the Courts to show a greater readiness than previously to order disclosure of the key documents underlying decisions involving proportionality issues, particularly in cases where a relatively narrow margin of discretion is accorded to a decision maker, when investigating alleged violations of the qualified rights protected by the ECHR.