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)
Diaries
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)
Enforcement
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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