Select Committee on Public Administration Fifth Report


4  From principle to practice

The principles governing publication

CURRENT GUIDANCE

86. The current guidance on the publication of memoirs is scattered and inconsistent. Guidance for former ministers is contained within the Ministerial Code which states that:

87. For civil servants, guidance appears in a number of places, and in a number of forms. The Directory of Civil Service Guidance reproduces the note of the 1993 Wakeham Committee on Ministerial Memoirs which states that:

    Former members of the public service should be under the same obligation as former ministers to submit their manuscripts for scrutiny with regard to national security and international relations, and to defer to the judgement of those carrying the immediate responsibilities in these fields. In the matter of confidential relationships, the principles concerning publications by ex-ministers, the obligations which rest upon them, and the periods for which those obligations should be maintained, should all be reflected in the rules governing the publication of memoirs and other works relating to their official experience by former members of the public service.[104]

88. The Civil Service Code includes an obligation for civil servants not to misuse their official position or information acquired in the course of their official duties to further their private interests or those of others, and requires them to conduct themselves in a way as to deserve and retain the confidence of ministers, and not disclose official information without authority. This obligation continues after civil servants have left Crown employment.

89. The clearest guidance is in the Civil Service Management Code which states that:

    Civil servants must not take part in any activities or make any public statement which might involve the disclosure of official information or draw upon experience gained in their official capacity without the prior approval of their department or agency. They must clear in advance material for publication, broadcasts or other public discussion which draws on official information.

    Civil servants must not publish or broadcast personal memoirs reflecting their experience in Government, or enter into commitments to do so, whilst in Crown employment. The permission of the Head of their Department and the Head of the Home Civil Service must be sought before entering into commitments to publish such memoirs after leaving the Service.[105]

A similar requirement is laid down for former special advisers in the Special Advisers Code.[106]

90. Guidance on the publication of memoirs by members of the Diplomatic Service is contained within the Diplomatic Service Regulations. These state that manuscripts or synopses of works which include official information or information which uses official experience, which may be liable to affect the Government's relations with other countries should not be submitted to publishers before receiving authorisation from the Department. Contributions to public debate should not:

  • prejudice national security;
  • harm international relations;
  • create the possibility of embarrassment to the Government in the conduct of its policies; or
  • bring into question the good name and impartiality of the Diplomatic Service.

91. The lack of a consistent set of criteria against which publications should be judged appeared to be a factor in the difficulties encountered in dealing with Sir Christopher Meyer. Unlike the Radcliffe Report, the Diplomatic Service Regulations made no reference to the need to protect confidential relations between ministers and civil servants. During the course of this inquiry, the regulations were revised to include this as an additional requirement, but this was too late to affect Meyer's publication. In a parliamentary answer, the Foreign Secretary told the House of Commons that Sir Christopher Meyer's manuscript was:

    …reviewed against the standard criteria for clearing publications under the rules. The judgement, with which I agreed, was made on the particular facts of this case that no changes should be sought primarily because the book posed no national security risk; it contained nothing substantially new which we judged would harm relations with the US; and nothing was specifically identified that was considered so damaging as to require consideration of legal action.[107]

RESTATEMENT OF THE PRINCIPLES

92. Over the course of this inquiry the FCO made changes to the Diplomatic Service Regulations, adding the requirement to avoid writing anything that would damage the confidential relationships between ministers, or between ministers and officials. Other guidance remains unchanged. We believe it needs to be reshaped to express the fundamental principles more clearly and consistently. The current inconsistencies lead to confusion and disagreement over what it is, or is not, appropriate to publish.

93. The basic principles governing the publication of memoirs should be stated in the same terms for ministers, civil servants and special advisers, although there will be differences in what it is appropriate for each group to publish. There should be no room for prospective authors to claim that they were unaware of the restrictions on their ability to publish, the criteria against which the acceptability of manuscripts would be judged, or the way in which those restrictions would be applied to politicians or to public officials. We recommend that guidance should be based on the following:

To ensure the good working of government, which involves the maintenance of trust between ministers, and between ministers and civil servants, there should be some restrictions on the publication of memoirs and diaries. In particular, authors should not include information which:

a)  may cause damage to international relations;

b)  may cause damage to national security;

c)  may cause damage to the confidential relationships between ministers, and between ministers and civil servants, or which would inhibit the free and frank exchange of views and advice within government.

Examples of matters which could cause damage to confidential relationships would include detailed accounts of Cabinet meetings of the government of the day, discussion of particular advice given to ministers by named civil servants, or disparaging references to public servants by ministers or vice versa. There is unlikely to be objection to discussion by former ministers of their ministerial colleagues, who can account for themselves.

Approval processes

THE CURRENT SITUATION

94. Current guidance is extremely vague about the process for clearing memoirs. Mr Price told us that he found the process for 'clearing' his diary difficult to negotiate "At the moment I think probably the system is kept deliberately opaque… The way in which the guidance I was given was phrased I did find confusing. All the way through I was feeling my way", and that "Although I remain of the view that workable rules are desirable and necessary, those that now exist did not appear to work in my case".[108] Sir Christopher Meyer considered that since many former colleagues were aware of his intention to write, he did not need to inform the Department more formally.[109]

95. It is apparent that even where the guidance is clear, it has not been enforced, or has proved unenforceable. There is no ambiguity about the requirement that texts should be cleared before they are sent to publishers. In practice, authors often seem to acquire publishers before gaining the approval of the Government or even having a text. Sir Christopher's evidence suggested that the current rules took no account of the modern publication process, in that they assumed that authors would not have a publisher until they had a final text.[110] This is a sound point, but in his own case appears to be disingenuous. The Diplomatic Service Regulations may have been unworldly in specifying that agreement had to be secured before texts or synopses were sent to publishers, but the FCO only learnt of Sir Christopher's intention to publish when advertisements appeared on Amazon trailing DC Confidential.[111] Informal contact with colleagues is not the same as proper notification, as he must have known.

MAKING THE PROCESS CLEARER

96. The Cabinet Office told us that it was making changes:

97. The new Diplomatic Service Regulations, amended and sent out to senior diplomats on 6 March 2006, did not contain any further guidance on the way the process of clearance should operate. We find it surprising that the Cabinet Office and FCO have not consulted one another and produced a single, consistent, approach.

98. It is unrealistic to expect authors (whether ministers, civil servants or advisers) to produce texts for clearance before they have secured any sort of agreement with a publisher. The rules should acknowledge that there may be discussion with prospective publishers before clearance is sought. But any contract between author and publisher should recognise that clearance will be needed, and no detailed drafts should be sent to publishers unless they have first been cleared. For its part, the Government must deal with texts properly and expeditiously. A few days after a work is submitted, prospective authors should be told how long clearance is likely to take. The length of time involved will, of course, depend on the nature of the work in question, but we believe that three months should be the longest period necessary and clearance should normally take a matter of weeks. Authors should know what to expect when they enter into the process. When changes are proposed, the reason for them should be explained to the author. Even though the Government should deal with drafts as quickly as possible, if real negotiation is needed it may take time (although we still envisage months rather than years). We do not see this as a disadvantage. Publishers may want gossip fresh, but, as Lord Wilson said, "the interests of publishers do not override the interests of good government".[113]

WHO CLEARS?

99. Clearance has always been a matter of negotiation. Lord Owen's correspondence with Sir Robin Butler, now Lord Butler of Brockwell, the then Head of the Home Civil Service, on some aspects of his autobiography, printed with this Report, shows the nature of such negotiation clearly: mostly in relation to references to named civil servants but also on Cabinet confidentiality and national security. This process of negotiation, also described to the Committee by Lord Wilson, is broadly in line with what was intended by Lord Radcliffe in his report.[114]

100. However, there has always been some ambiguity about whether politicans or civil servants should clear memoirs. The historical outline in Chapter 2 shows a succession of Cabinet Secretaries trying to impose rules upon publications of memoirs and diaries by ministers, and frequently being rebuffed by ministers who had a mind to their own future publications. Last year, the Foreign Secretary intervened when he became aware that Sir Jeremy Greenstock was intending to publish a memoir and expressed "strong objections" even though the author had already entered into a process of negotiation on the text with the FCO. Sir Jeremy told us that "I went in to see Mr Straw in early July and he confirmed his opposition to the book as a matter of principle. I said I would take account of what he had said, but would want to finish the clearance process".[115] In the event, Sir Jeremy postponed publication describing the book as now "in the deep freeze".[116] We believe there is a strong public interest case for its early publication.

101. The difficulties arise when agreement cannot be reached. The authors from whom we took evidence were not convinced that it was for those within government (ministers or civil servants) to be the final judge. Sir Jeremy recognised that his view of what was in the public interest was not the only view, and that it was not for him to make a final decision on this.[117] This contrasted with Sir Christopher Meyer's assertion (in his correspondence with the FCO over the publication of his memoir) that "There is no intrinsic reason why a group of civil servants should be a better judge of [public interest] than one individual".[118] However, in his evidence to the Committee, Sir Christopher seemed to have changed his mind. He suggested that:

    … the machinery for reviewing political memoirs may need strengthening: for example, by a small committee, chaired by the Cabinet Secretary, comprising some permutation of publicly appointed lay members, special advisers and civil servants, who will read and rule on manuscripts. The Committee would decide both on content and on where the public interest lies as to the timing of publication….[119]

102. The Radcliffe Report hoped that flexibility and goodwill would prevail:

    …it involves questions of identification and degree, how much or how little is to be said and how far specifically or only in general…Given goodwill and a readiness to make adjustments it may well be possible for both points of view to be reconciled, since a measure of flexibility is called for in this sort of debate. But it is not a range of subject upon which we feel justified in recommending that it should be the duty of the author in the last resort to give way to the view of the Cabinet Secretary or of the Prime Minister, if the issue reaches the latter… On all these matters the author must take upon his own shoulders the responsibility of deciding for himself what he is going to say and how he is going to express himself.…[120]

103. Mr Murray has also been informed by senior FCO officials that the submission on whether or not to give him permission to publish was put to the Foreign Secretary. He told us that this seemed "to open questions on whether politicians should be permitted to ban information about their own conduct. The Committee may consider such decisions might be better taken by an independent body enforcing agreed rules".[121]

104. Radcliffe himself raised the possibility of instituting a Committee of Privy Counsellors to consider whether publications were acceptable:

    …Certainly, there are attractions in the idea. Such a reference could take a controversy out of the area of immediate confrontation; and it would bring to bear upon it the objective judgements of a number of persons with political or judicial experience of affairs. On the whole, however, we do not advocate a formal proceeding of this kind. If on any particular occasion the Prime Minister should wish to bring into consultation and take the advice of any one or more such persons, there is nothing to prevent him from doing so. But we think that it would be a mistake to institute any such regular practice.[122]

The Report left open the question whether more formal machinery might be needed in the future if attitudes and circumstances changed, and if the informal arrangements broke down.

105. The use of independent appointed bodies rather than ministers who are constitutionally accountable is not without difficulties. Nonetheless, the reality is that neither the author of a political memoir, nor those whom the author is writing about, will be trusted to judge what is in the public interest. The perception will always be that their own interests will influence judgements. An independent body to clear texts therefore has an obvious attractiveness, rather as the Advisory Committee on Business Appointments is used to clear subsequent private sector employment for former officials and ministers. The question is when such a body should be involved. Mr Murray clearly does not trust the Foreign Secretary to judge his work impartially. It would be equally unsatisfactory if clearance was solely in the hands of career officials. Ministerial trust in the civil service would be quickly eroded if ministers felt they could be criticised by former officials without any opportunity to have a say. As we have argued, one of the main dangers of unrestricted publication of memoirs is the potential to undermine the relationship between ministers and officials. Unconstrained publication by ministers could be as damaging to this relationship as unconstrained publication by civil servants. Removing the active partners from the negotiation, and handing it over to an independent body, does not in itself avoid this danger. Such a body could take a more restrictive view of publication than was really necessary, or it might allow such latitude that working relationships were undermined. All guidance should make it clear that, in the first instance, approval for publication may have to be secured by negotiation. At the stage when a text is in negotiation, it seems to us appropriate that both ministers and public servants should have the right to comment on what is proposed, and see if agreement can be reached.

106. However, we believe it would be appropriate to have an appeal mechanism if agreement cannot be reached, on a proposal, or a text, or on timing. In such cases, a small committee of Privy Counsellors or other senior figures (to be known as the Advisory Committee on Memoirs) could be used. If such a group were to contain former experienced politicians from more than one political party, a former senior public servant and a member of the judiciary, it would be well placed to weigh the public interest considerations involved and to give authoritative judgements. Its membership should be agreed by the Leaders of the political parties.

107. There is no reason why the process should differ for civil servants, ministers, special advisers and diplomats. The new procedure should be included as an annex to the Ministerial Code, the Civil Service Management Code, the Special Advisers Code and the Diplomatic Service Regulations. This guidance should be provided to all holders of public office when they are appointed, and when they stand down.

Enforcement

108. It would be perfectly possible simply to restate the guiding principles, which are still those of the Radcliffe report, ensure the processes for securing agreement are clear, add a little new machinery, and leave the matter at that. This would avoid the issue of enforcement altogether. There is an argument that informal sanctions work perfectly adequately, relying on the so called "good chaps theory of government".[123] In this model, politicans and officials are aware of their obligations and act accordingly. If they occasionally do not, the rules are re-asserted by those in a position of authority, those who offend against the rules suffer damage to their reputations and are universally agreed to be bad chaps, thus reinforcing the incentive to abide by the rules.

109. In the 1970s Lord Radcliffe argued that former ministers:

    …should be able, surely to conduct themselves properly and recognise their obligations without the creation of statutory offences or statutory penalties. To be driven to suggest otherwise would be to acknowledge a sad decline in the prestige of modern government. We do not yet think that things have come to such a pass.[124]

110. The 1993 Wakeham Committee came to a similar conclusion, finding that "the established principles of law do not provide a system which can protect and enforce those rules of reticence that the Committee regard as called for when ex-ministers compose their memoirs of ministerial life" and that legislation did not offer a solution.[125] They concluded that:

    There can be no guarantee that, if the burden of compliance is left to rest on the free acceptance of an obligation of honour, there will never be an occasional rebel or an occasional breach; but so long as there remains a general recognition of the practical necessity of some rules and the importance of observing them, the Committee do not think that such transgressions, even though made the subject of sensational publicity, should be taken as having shattered the fabric of a sensible system.[126]

The final decision about whether and what to publish has hitherto rested with the author.

111. The question is whether the recent contentious cases are still to be seen as occasional transgressions, or as evidence that the good chap model has now broken down. Lord Turnbull explained that most of those who had produced recent memoirs and diaries very critical of the Government had behaved in accordance with the rules: Robin Cook, Clare Short and ("after some argy bargy") Derek Scott all submitted their manuscripts.[127] Lord Wilson argued that "The fact that there have been people who break the rules does not mean that the whole process has come to an end. What you need to do is to reassert it and not to condone cases where people have not observed it".[128]

112. Criticism of Sir Christopher Meyer in particular has been fierce. As Mr Benn commented "If someone leaves office and then writes a lot of malicious stuff about those with whom he previously worked, it will not do him a lot of good".[129] Mr Straw told the Committee that Sir Christopher "has destroyed his reputation and actually the sanction which he suffered… is far greater than any sanction he is likely to have suffered in court… The guy has been completely ostracised… So the legacy of his publication and his betrayal is a very substantial one and a very poor one for him".[130] He claimed "that what the Meyer book has done, I think, has been to re-enliven these conventions in the minds of officials. I think there will be very, very, few members of the Diplomatic Service doing a Meyer in the foreseeable future".[131] However, we note that notoriety can also lead to a rise in saleability.

113. We certainly hope that the good chaps version of government is alive and well. If so, then recent cases will come to be seen as simply unfortunate, when 'stuff happened' to an unprecedented degree, to the delight of some and consternation of others. Future authors will be careful to ensure that their texts are properly cleared, and fully agreed. But if the climate has changed, in the direction of competitive and lucrative memoiring soon after events, with the result that the traditional conventions no longer work, then something more may be needed.

REMEDIES

114. The traditional remedy has been the injunction to prevent publication. Despite the views of Lord Radcliffe, the courts have been reluctant to accept there is a wide public interest in restraining publication about matters internal to government, given the public interest in freedom of expression and transparency. Applications for such injunctions have consistently been rejected. In 1975 Lord Widgery found against the Attorney General when considering the publication of the Crossman diaries. The Spycatcher (No. 2) case in 1988 involving Peter Wright, a former member of MI5, also failed to prevent publication by permanent injunction of press reports about Mr Wright's text even though an interim injunction had been upheld narrowly by the House of Lords a year earlier. Professor Birkinshaw noted that:

115. There are good reasons for this approach by the courts. None of the works we examined has revealed information that is more than embarrassing. Attempting to ban their publication would be an extreme step and would be unlikely to succeed.

116. However, the lack of any intermediate remedy is profoundly unsatisfactory. It has left government reliant on negotiation, with legal remedies only available in the most extreme cases. Lawyers for Mr Murray's publishers are quoted as saying "Government departments are capricious and that is their nature".[133] Government should not be capricious, yet the record of the last year suggests that it can be, and includes:

  • an attempt to prevent publication, followed by negotiation over the text (possibly influenced by the prospect of legal challenge) leading to embarrassing juxtapositions of "before and after" passages (Mr Price);
  • a successful ministerial intervention to delay publication (Sir Jeremy Greenstock);
  • a refusal to offer comment or authorisation followed by post-publication condemnation (Sir Christopher Meyer); and
  • threats to take legal action in the event of publication (Mr Murray).

The FCO and Cabinet Office have been unable to take a firm and consistent line about what is or is not acceptable, or how the rules should be enforced.

117. Clarifying the rules and the clearance process would improve matters. However, without some effective legal sanctions they will remain no more than advice, and even complying with the clearance process will be essentially voluntary. The Government had to rely on social contacts even to obtain a copy of Sir Christopher's memoir. It is unsatisfactory that serious works by responsible authors can be blocked, while attempts to restrain publication of material which may be diverting, but which may also, contribute to the long-term erosion of trust within government, simply serve to increase their saleability.

118. It can be that publishers threaten litigation, to force the Government to change its mind. If the Government engages in detailed negotiations, it risks giving a disputed work publicity as 'the book they tried to ban', or providing newspapers with 'before and after' passages for serialisation. In effect, the Government is able to recommend delay in publication, or suggest changes to the text, only if it is confident of the good faith of the author involved. Where this is in doubt, it is safer to offer no comment. A process in which the Government has a positive disincentive to participate if it suspects that it is dealing with someone irresponsible is profoundly unsatisfactory. The current legal bias towards publication is welcome, but means that there is no pressure on the 'bad chaps' to negotiate. We do not believe in banning books. We need a system which leaves the final decision on whether or not to publish in the hands of the author, as Radcliffe proposed. But there should be a real incentive for the author to take account of the Government and Advisory Committee's guidance.

119. Professor Birkinshaw told us he believed that "Any action must avoid the appearance of oppression or victimisation. Guidance would have to make a convincing case that what is proposed is in the legitimate interests of efficient and responsive government and is not an unjustifiable attempt to muzzle freedom of speech".[134] Such a system could be imposed by statute, if the Government considered it proportionate and could find time for legislation.

120. Lord Wilson observed:

    I am sure we could all put together a Bill which set up a tribunal to oversee the system, which laid down a process and which had penalties and criminal sanctions or civil sanctions, I do not know, for people failing to observe the process. I think that would be very heavy handed and I would want to try and keep out of that if I possibly could.[135]

121. We agree that statute law is not an appropriate means for restraining publication. Not only is it unlikely that any government would find time for such legislation, it is far from clear that statutory provisions could be drafted which would satisfactorily deal with complex considerations about confidentiality and public interest without being too rigid and oppressive. However, we believe there are nevertheless some legal means available to encourage more consultation and negotiation over the publication of memoirs.

CROWN COPYRIGHT AND CONFIDENTIALITY CLAUSES

122. If it is no longer sufficient to rely on good faith, then it is proper to consider whether some legal recourse would help. In the private sector, contracts routinely include confidentiality clauses. The dual use of confidentiality clauses and Crown Copyright could provide a solution. Professor Birkinshaw explained to us how this system could work:

123. In other words, publication would not usually be banned (although an injunction might be used to prevent a breach of copyright), but courts could be asked to ensure that authors did not profit from unauthorised work, unless they felt the Government had withheld consent unreasonably.

124. Any use of copyright and confidentiality clauses would have to take into account Article 10(1) of the European Convention on Human Rights which states that "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers…". However, this right under Article 10(1) is not absolute. It is qualified by Article 10(2) which "expressly refers to accompanying duties and responsibilities and the right may be subject to formalities and restrictions 'prescribed by law' (a binding agreement would satisfy that requirement) and which are necessary to protect the reputations of others (defamation) or to prevent disclosure of information received in confidence".

125. As Professor Birkinshaw said:

    "Necessary" is a very demanding test.[137] The pressing social need would be to protect the integrity of advice given and received in office, to ensure that those still in service are confident that they can advise candidly and honestly. This would not arguably include gossip, matters of taste or opinion. The restraint agreed to would have to be proportionate.[138] Sometimes gossip or opinion may be damaging to continuing relationships.[139]

126. If the Crown owned the copyright there would be no public interest in salacious gossip which would override that copyright. But an informed commentary could be of real public interest. We accept that there is a legitimate need to ensure the ability of those in office to put trust and confidence in one another. If it became normal for public servants to fund their retirements through rapidly produced memoirs, revealing damaging gossip or political differences within government, that confidence would be fatally undermined. For that reason, we believe some system for restraining publication is justified.

127. But that restraint must be proportionate. There must be a balance between the right to publish and the need to maintain proper confidentiality. The agreement discussed in paragraph 122 above should stipulate that consent to publish will not be withheld unreasonably nor for an unreasonable period of time. There would be maximum encouragement for negotiation on details. This might help concentrate the minds of authors and publishers on the balance of interests involved in political memoirs.

128. Mr Murray has argued that the use of Crown Copyright to remove proceeds was "an unjustified limitation of freedom of speech". He told us that:

    …the laws of defamation and libel, the Official Secrets Act, the Data Protection Act and the Freedom of Information Act provide proper and secure boundaries of law within which an employee ought to have the right to air his grievance. For the employer to simply ban the book by refusal to clear it, and the threat of arguing in court that the area of dispute is subject to Crown Copyright, cannot be fair.[140]

129. Mr Murray claims that the threat of legal action over Crown Copyright would amount to a ban, as it would act as an "effective deterrent to any publisher, whose purpose is to run a business publishing books, not to conduct extremely expensive litigation".[141] He also makes the point that whistleblowers should be treated differently from those who retire after a full career.

130. We have some sympathy with the general proposition that those who leave public service so that they can speak out are in a different position from those who ensure they have an adequate pension before doing so, although we are not in a position to judge individual cases. Nevertheless, there would be more equality of arms under such a system than Mr Murray supposes. As Professor Birkinshaw explained "…the prospective author may by-pass any proposed procedure agreed to by the undertaking without the consent of the employer, forcing the Crown side to seek reparation through the courts for breach of the undertaking. The author would wish to invoke a public interest in overriding the undertaking".[142] It would be for the courts to decide what penalties were appropriate, and how costs should be allocated. If it was judged that unauthorised publications were genuinely in the public interest, the position of the author and publisher would have to be regarded by the courts.

The Cabinet Office and Foreign and Commonwealth Office proposals

131. Recent changes to the rules on publication issued by the Cabinet Office and the FCO suggest that the Government is considering something close to the enforcing of confidentiality and copyright. But, here again, the Cabinet Office and the FCO have taken differing approaches. Such differences can only make the rules and procedures both easier to evade and harder to enforce by complicating and confusing the operation of the system.

132. The Cabinet Office have informed us that, in future, "staff in sensitive areas will be asked to sign an undertaking that they have read and understood the rules relating to the disclosure of official information and the publication of memoirs and other publications and that they will abide by the rules".[143] Sir Gus O'Donnell has informed the Committee that he has signed such a declaration.[144] The FCO, when sending out the new Diplomatic Service Regulations on 2 March 2006, required the recipients to click on a "read and agree" button attached to the email message to confirm the following statement:

    I have read and understood either the Diplomatic Service or Home Civil Service Regulations, as appropriate, and agree to be bound by them. My particular attention has been drawn to DSR5 and HSR4 which deal with the use of official information or experience, publications, contacts with the media, lectures, speeches and conferences.[145]

133. The Cabinet Office also proposes that "individuals will be asked to assign copyright to the Government of future works (including newspaper serialisations) thereby targeting action at those with most access to sensitive information".[146] However, the new Diplomatic Service Regulations do not include such a provision. Paragraph 10 of the new Diplomatic Service Regulations does make a reference to Crown Copyright, but Professor Birkinshaw points out that it refers to the provisions of the 1956 Copyright Act which has been repealed and is now superseded by the 1988 Copyright Act. Professor Birkinshaw finds the reference to a repealed piece of legislation "perplexing", as do we.[147]

134. We believe that a legally binding statement would provide an effective mechanism to check unacceptable publication. But it is not clear why home civil servants should need to sign such a declaration, whereas members of the diplomatic service can simply respond to an email. It is also not clear whether there will be any requirement for ministers to abide by the same set of principles and processes as civil servants and diplomats, and whether special advisers will also be required to agree to these requirements.

135. We support the Cabinet Office's action in clarifying the contractual duty to clear any memoirs before publication, and in requiring officials with access to sensitive information to assign copyright in future works to the government, allowing government to seek profits from unauthorised publication. The same confidentiality clause should apply to civil servants, diplomats, and special advisers. Potential authors must not be left in any doubt about the nature of the agreement they are entering into.

136. Ministers are not in a contractual relationship with government, and have in the past resisted all attempts to make them formally subscribe to rules on publication. We consider that Radcliffe's recommendation that ministers taking office should sign a document making clear they understand the restrictions on publication had great merit. The duty to sign a formal commitment to consult before publication should be placed clearly and explicitly in the Ministerial Code.

137. If the new system is treated seriously, it will affect both authors and government. Both will have an incentive to negotiate properly, and to take account of the views of an appeal body. If the government cannot approve a work and it is nonetheless published, it must go to court to assert copyright and pursue profits. The government will have both a weapon and an incentive to negotiate as, apart from cost, court cases can increase the publicity given to the work in question.

138. Similarly, authors will know that if they publish without agreement, they will face legal consequences and may forgo their profits. If government delays unnecessarily, or refuses clearance against the advice of the Advisory Committee, authors will have a choice. They can explore a legal challenge to the government, or simply take the risk of publishing without agreement. Their position would have been strengthened if the government had been unreasonable. This new system will not prevent any author publishing anything he or she wishes, but it will reduce the incentive to spice up memoirs with gratuitous material.

139. It will be important that negotiations take place in an atmosphere where the bias is towards publication with an opportunity for appeal to a body of the kind outlined in this report. Equally, the government should be prepared to take legal action, in those cases where it is appropriate to protect confidentiality in government. It would then be for the courts to decide whether the public interest in publication was so great that it overrode other obligations, and award remedies and costs accordingly. Much will depend on the context, merits and details of particular cases and how the balance between openness and confidentiality is drawn. Future negotiations will be informed by such judgements.

140. The rules for publication need clarification and bringing up to date. The Cabinet Office and FCO have begun to do this, but in an incoherent and haphazard way. The events of the last year have shown that without proper clarity, decisions can be driven by expediency, and assessment of the personalities of those involved, rather than by clear principle. The legal remedies we propose, for both author and government, only come into play if authors publish without consent, or consent is unreasonably withheld, after appeal procedures are exhausted. They contain safeguards for both sides. We hope that recourse to law would occur rarely, if at all, and that agreed guidelines with fair procedures to implement them would ensure successfully negotiated outcomes.

141. Nothing in this report will constrict the opportunity to publish memoirs. There should always be a bias in favour of publication, for the public interest reasons we have identified. However, this has to be balanced against another public interest, which is the need for there to be a private space for frank discussion within government, and for this to enjoy some kind of protection. We have sought in this report to strike this balance sensibly. Above all, our proposals are designed to bring more certainty and clarity to the principles and procedures involved in the consideration of memoirs. This should in turn bring more confidence into the system, on all sides, and help to avoid the sort of recent difficulties that have prompted this inquiry.


103   The Ministerial Code, para 6.18. Back

104   Directory of Civil Service Guidance, Volume 2: Collected Guidance, 2000, Ministerial Memoirs: The Radcliffe Rules and their Application, para 10. Back

105   Civil Service Management Code, para 4.2.4-5. Back

106   The Special Advisers Code, para 27. Back

107   HC Deb, 28 Nov 2005, c165W Back

108   Q 270 and Q 222 Back

109   Q 215 Back

110   Qq 155-159 Back

111   HC Deb, 28 Nov 2005, c165W Back

112   Ev 108 Back

113   Q 10 Back

114   Q 46 Back

115   Ev 87 Back

116   Qq 341-342 Back

117   Q 274 Back

118   Letter from Sir Christopher Meyer to Sir Michael Jay, 7 August 2005, placed in the House of Commons Library. Back

119   Ev 85 Back

120   Report of the Committee of Privy Counsellors on Ministerial Memoirs, January 1976, Cmnd. 6386, para 80. Back

121   Ev 106 Back

122   Report of the Committee of Privy Counsellors on Ministerial Memoirs, January 1976, Cmnd 6386, para 81. Back

123   Q 136 Back

124   Report of the Committee of Privy Counsellors on Ministerial Memoirs, January 1976, Cmnd. 6386, para 69. Back

125   Guidance Note on the Conclusions and Recommendations in the Report of the Radcliffe Committee on Ministerial Memoirs (Cmnd 6386, January 1976) and their application, 1993, para 6. Back

126   Ibid., para 8. Back

127   Q 72 Back

128   Q 43 Back

129   Q 425 Back

130   Q 469 Back

131   Q 496 Back

132   Ev 111 Back

133   Ev 106 Back

134   Ev 116 Back

135   Q 56 Back

136   Ev 113 Back

137   See Sedley LJ in Interbrew [2002] EWCA Civ 274 para 47; Lord Bingham in Shayler above para [22] at para 23; Lord Woolf CJ in MGN [2002] 4 All ER 193 paras 61-62. Back

138   See Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 3 All ER 433 (HL). Back

139   Ev 116 Back

140   Ev 106 Back

141   Ibid. Back

142   Ev 113 Back

143   Ev 108 Back

144   Oral evidence taken on Ethics and Standards,16 May 2006, HC (2005-06) 884-v, Q 249 Back

145   Letter from David Warren to all members of the SMS and all Heads of Post, 2 March 2006. Back

146   Ev 108 Back

147   Ev 117 Back


 
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