Select Committee on Public Administration Fifth Report

Conclusions and recommendations

The public interest in publication

1.  Official histories perform a valuable function; we applaud the financial support and access to papers which successive governments have made available for them and recommend that this practice continues. (Paragraph 32)

2.  There is no doubt that there is a strong public interest in the publication of political memoirs and diaries. They provide insights into the processes of government and the nature of key events. The question is to what degree that public interest needs to be balanced against other public interest considerations, and how that balance is to be struck. (Paragraph 39)

The public interest in restraint

3.  What is said in memoirs may not simply reflect change, but may itself bring it about. If it comes to be considered unexceptionable for recently retired public servants to publish memoirs which contain personal remarks about ministers and observations on their policies, or if politicians start to identify and criticise named civil servants in their memoirs, the terms of the "governing marriage" would have altered to such an extent that it is hard to see how traditional doctrines of ministerial and civil service accountability could continue. (Paragraph 52)

Memoirs and money

4.  The strength of the market for sensational or titillating material makes it even more important that there should be a clear understanding about the kind of discretion necessary to protect relationships inside government. We have no doubt that some discretion is necessary, on both sides. The dangers do not come from the single shocking memoir, but from the steady erosion of confidence and trust driven by the prospect of commercial gain. (Paragraph 58)

Cabinet confidentiality

5.  There has to be a degree of confidentiality within government even in the relationship between politicians. Cabinet government would not be improved if those around the table were aware that any one or more of them was intending to publish their own account of Cabinet the moment the meeting had ended. On the other hand, it has long been accepted that politicians will legitimately wish to give an account of their actions, and that this will involve giving an account of the internal workings of government, including—after an appropriate time—of Cabinet. (Paragraph 65)

Ministers and civil servants

6.  Free and frank exchanges between politicians and civil servants depend on confidentiality and trust in government, and this implies a degree of subsequent reticence on both sides. As long as serving civil servants are not publicly accountable for their actions and do not publish accounts of their experiences, it would not be right for former ministers (or special advisers) to criticise named civil servants who have no right of reply. (Paragraph 68)

7.  Civil service guidance and codes emphasise the confidential relationship between ministers and public servants. Public servants are only able to produce saleable reminiscences as a consequence of their position in a non-political public service. Former ministers have largely kept their side of the bargain; public servants should be expected to keep theirs. (Paragraph 72)

Special advisers

8.  Special advisers occupy a special position, and this brings special obligations of trust. They are closer in kind to ministers than civil servants since they are politically appointed, for a short time only. Unlike ministers, they are not politically accountable in their own right. These considerations affect how they should be treated in the matter of memoirs. An adviser who publishes a juicy memoir may embarrass the minister who appointed him, and betray the trust that was placed in him, but does not necessarily undermine the relationship between politicians and officials. Like ministers, though, they should not identify named officials and their advice. (Paragraph 75)


9.   The real issue is not that diaries are kept but when they are published, and what they can properly include. While current allocations of responsibility remain, it is appropriate that politicians should have greater freedom than officials in these respects. (Paragraph 78)

The question of timing

10.  As a general principle, the longer the memoir writer waits, the more they may possibly reveal. The exact trade-off will depend on the nature of the material, whether those who would be affected by publication are still in office, and the author's former position. A diary, as a more intimate account, is likely to need a longer wait before publication in full. Although broad guidelines may be helpful, a fixed time period before publication is unlikely to be applicable to the variety of cases and circumstances. (Paragraph 85)

The principles governing publication

11.  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. (Paragraph 93)

Approvals process

12.  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. (Paragraph 98)

13.  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. (Paragraph 105)

14.  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. (Paragraph 106)

15.  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. (Paragraph 107)


16.  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. (Paragraph 117)

17.   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. (Paragraph 118)

18.  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. (Paragraph 121)

Crown copyright and confidentiality clauses

19.  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. (Paragraph 135)

20.  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. (Paragraph 136)

21.  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. (Paragraph 137)

22.  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. (Paragraph 138)

23.  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. (Paragraph 139)

24.  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. (Paragraph 140)

25.  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. (Paragraph 141)

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