Transparency and judicial review: a study of the duty of candour

This empirical study will examine the duty of candour in judicial review proceedings.

In England and Wales, all parties to judicial review proceedings are under a general duty of candour. This requires them to provide a full and accurate explanation of all facts relevant to the review.

However, the duty of candour is under strain due to a variety of pressures, including:

• changing litigation practices
• the use of digital technology and remote working in government decision making
• and rising reliance on complex decision-making systems in public administration.

There is an ongoing conversation about reform of the duty of candour, as evidenced by remarks made by the Independent Review of Administrative Law panel.

However, there has not been a detailed study of how the duty of candour works. There is a risk that reforms could be implemented with an insufficient evidence base. This project aims to address this evidence gap. It will identify:

• What is the law on the duty of candour?
• What views are there on the operation of the duty?
• What changes to the duty might be required, including responding to evolving litigation trends and government decision-making practices?

The research will involve three work packages:

1. A systematic content analysis of judicial decisions where issues of candour are raised. This will provide insight into: claimant, defendant, and judicial understandings of the parameters of the duty; patterns in or changes to judicial doctrine; and empirical information, such as whether certain types or areas of administrative decision-making invite greater disputes over disclosure.
2. In-depth semi-structured interviews with a range of public law practitioners, including Government Legal Department lawyers. This will inform our understanding of the impact of the duty of candour and how it is interpreted and perceived in practice.
3. Based on data collected in the first two work packages, a list of potential options for reform will be developed and tested in collaboration with the advisory group and other study participants.

The project will provide key insights into how the duty of candour operates in practice, generating a robust evidence base to inform practice and policy development.