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At some point of time the secrets of one period must become
the common learning of another…
The Radcliffe Report, 1976[1]
As Lord Radcliffe recognised, memoirs and diaries tell us a great deal about the workings of government. They are a source of interest to the general reader, valuable for the citizen, and a resource for future historians. They may not prevent our repeating the mistakes of the past, but can put events into perspective. Their publication is to be encouraged.
On the other hand, government needs some areas of confidentiality if it is to be conducted effectively, and if all concerned are to be as candid with one another as they need to be. Illjudged and instant memoirs can undermine that confidentiality, and erode the trust which is necessary for ministers, officials and advisers to work together.
If it comes to be unexceptionable for public servants to publish instant memoirs on retirement which contain personal details of politicians and observations on their policies, or if politicians come to criticise named civil servants and their advice, it is hard to see how traditional relationships between ministers and civil servants can be maintained. Ministers will not trust permanent officials if their confidences are broken, or if they are routinely denigrated. Able people will not go into public service if it offers the prospect of regular denigration, without the opportunity to answer back.
The current system for clearing memoirs recognises all this, and supposedly requires authors to consult and negotiate before they publish. Sometimes those negotiations succeed. We feel the government has sometimes been rather too cautious in its attitude to proposed memoirs. But if an author is unwilling to cooperate, unless national security is at stake, there is nothing effective the government can do to prevent publication. If it goes to court it simply gives the offending work additional publicity as "the book they tried to ban". Legal precedents show the courts are rightly only prepared to grant an injunction preventing publication when it is clear that identifiable damage will be done. But the dangers do not come from the single shocking memoir, but from the steady erosion of confidence and trust.
We need to move to a new system, based on contractual confidentiality and the law of copyright, in which authors have freedom to decide what to publish, but face real disadvantages if they publish without agreement. We support the recent changes which emphasise the contractual obligation of confidentiality for Crown servants, and make it clear that copyright in material drawn from their professional life is assigned to the Crown. In such a system, if an author publishes without agreement, the Crown can take action to attach the profits. We would support the extension of this system to ministers.
A change of this kind would mean that there could be no question of the government banning books. If an author felt strongly that publication was in the public interest, he or she would be free to publish and argue as much before the courts, which might agree. The government would be under pressure to negotiate and compromise, since it could only block books if it were confident that a court would not find a public interest in their publication.
Court proceedings should, however be a last resort. We propose that if initial negotiations do not succeed, and there remain outstanding disagreements, there should be an appeal mechanism to a small group of people with relevant experience, probably Privy Counsellors.
Recent cases have shown that the government has found difficulty in taking a firm and consistent line with prospective authors. During our inquiry it has attempted to improve the situation, but has introduced piecemeal changes, rather than the thorough overhaul of the system that is needed. The Cabinet Office and the Foreign and Commonwealth Office have even managed to introduce different regimes. The same system, though not the same rules, should apply to former ministers, officials and special advisers. The machinery should enable publication to take place, subject only to necessary restrictions. There needs to be a single clear statement of principles against which future works will be judged, and of the processes that should be followed for approval. This should ensure that there is no room for a future author to claim that he or she did not know what was required, and no ambiguity about whether or not a work has been cleared.
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