Memorandum by Professor Patrick Birkinshaw
PREVENTING AND
CONTROLLING PUBLICATION
1. It is often said that we live in the
information age and that freedom of information has altered the
political culture. It is a culture that justifies a more liberal
approach to memoirs—so authors of memoirs assert. Freedom
of Information is disclosure under terms; the problem addressed
by the Select Committee is disclosure without approval. The following
advice addresses the problem caused by indiscreet, ill-judged
or improper revelations by former public servants, including Ministers,
which do not amount to breaches of the criminal law and which
may be difficult to frame within the law of confidentiality. It
will be necessary to say something about confidentiality to set
the context. I will also address the problem by suggesting a generic
approach although the problems posed by the various groups may
differ, as does their legal status. One of the arguments pressed
by the witnesses before the Committee was the difference in treatment
meted out to Ministers and civil servants. Since this advice was
drafted, the Diplomatic Service Regulation 5 (and HSR4) which
address the question of publications by existing and former members
of the diplomatic service have been revised. The Cabinet Office
has also sent a memorandum on Publication of Political Memoirs.
These new developments are addressed in an addendum to this
advice.
2. There are four groups of individuals
whose activities may cause problems from the perspective of unauthorised
publications: Ministers, civil servants, private advisers working
under short-term contracts and diplomats. I ignore police and
military personnel. Unauthorised disclosures may lead to a breach
of the OSA if disclosures are within the terms of that Act although
prosecutions for breaches of the 1989 Act and its predecessors
have never been brought against ex Ministers as far as I know
(?). The special position of security and intelligence officers
has been dealt with exhaustively in case law and legislation which
has emphasised their unique position.
3. In general terms all four groups would
fall under the terms of the law of confidence in their employment
relationships with each other, and in their relations with Ministers
in the case of the latter three groups. Basically, the law of
confidence seeks to protect information from publication, or to
award compensation where a duty of confidence has been breached.
To be confidential, information must have the "necessary
quality of confidence about it" something which is not "public
property" or "public knowledge". Lord Greene MR
Saltman [1948] 65 RPC 203. Or the protection may be extended to
items which are in the public domain but which are assembled in
such a way that they are only known in that form to the mind of
the confider or to those in whom he or she has confided. Secondly,
the information must have been imparted in circumstances importing
an obligation of confidence. Thirdly, there must be an unauthorised
use of that information to the detriment of the party communicating
it. (Coco v A N Clarke [1969] RPC 41 at 47)
4. Two situations must be distinguished:
prevention of publication by injunction and seeking damages or
compensation after publication where that publication has resulted
in a breach of undertaking.
PREVENTION
5. Let me deal first of all with prevention
of publication. It was accepted in Att Gen v Jonathan Cape
[1975] 3 All ER 484 that confidentiality does apply to public
secrets, specifically to protect communications between Ministers
and between civil servants and Ministers (p.494b) in order to
protect collective responsibility of Cabinet discussions. In terms
of Cabinet confidences Lord Widgery said: "I conclude therefore
that when a Cabinet Minister receives information in confidence
the improper publication of such information can be restrained
by the court, and his obligation is not merely to observe a gentleman's
agreement to refrain from publication." (p.495b) He found
no ground on which a court could restrain publication by a Minister
of their views on civil servants' advice or their competence:
neither the Crown nor an individual servant "has an enforceable
right to have the advice which he gives treated as confidential
for all time" (emph. added p.496g). The words "for
all time" might lead one to infer a duty limited by time.
This was not how Radcliffe read it. But the period in question
in relation to Cabinet meetings ie the subject of the diaries
of Richard Crossman, referred to periods over 10 years prior to
the litigation. To succeed in his pursuit of an injunction the
Att Gen had to show that publication was a breach of confidence;
that the public interest requires that publication be restrained;
and that there are no other facets of the public interest contradictory
to and more compelling than that relied on (ie a wider and greater
public interest in knowing). Too long a period had elapsed to
justify an injunction covering Vol I. Injunctions were not sought
by the Attorney General subsequently to restrain publication of
Vols II and III although the latter volume contained information
predating the litigation by five years. Where a legal duty of
confidence is owed, the confidee may be restrained from publishing
even where the material has been published by others eg by the
press who are simply reporting what is publicly available. (Att
Gen v Guardian Newspapers [1988] 3 All ER 545 (ChD, CA and
HL). The Guardian case (Spycatcher) held that the test
for restraining publication was damage to the public interest.
6. The jurisprudential basis of Lord Widgery's
judgment and the application of principles of law fashioned in
private law and their extension to the governmental sphere were
given further elaboration in Commonwealth of Australia v John
Fairfax Ltd (1980) 147 CLR 39 (51-52) by Mason J. This case
has been influential in subsequent English litigation and is worth
quoting at some length:
"The equitable principle has been fashioned
to protect the personal, private and proprietary interests of
the citizen, not to protect the very different interests of the
executive government. It acts, or is supposed to act, not according
to standards of private interest, but in the public interest.
This is not to say that equity will not protect information in
the hands of the government, but it is to say that when equity
protects government information it will look at the matter through
different spectacles.
It can scarcely be a relevant detriment to the government
that publication of material concerning its actions will merely
expose it to public discussion and criticism. It is unacceptable
in our democratic society that there should be a restraint on
the publication of information relating to government when the
only vice of that information is that it enables the public to
discuss, review and criticise government action.
Accordingly the court will determine the government's
claim to confidentiality by reference to the public interest.
Unless disclosure is likely to injure the public interest, it
will not be protected."
Intriguingly, the judge added:
"If, however, it appears that disclosure
will be inimical to the public interest because national security,
relations with foreign countries or the ordinary business of
government will be prejudiced, disclosure will be restrained"
(ibid, emph added).
7. The italicised phrase could include a
failure in civil servants to advise candidly and without reservation
because of a fear of being quoted and a similar apprehension in
Ministers to expressly themselves candidly. Revelations may inhibit
the ordinary business of government. Be this as it may, I know
of no attempt to apply this dictum to restrain judicially unapproved
memoirs. And a degree of robustness would be expected. In short,
courts are reluctant to award injunctions restraining the publication
of memoirs of the type under discussion unless there is a continuing
duty of confidence and a prospect of damage to the public interest.
Where such damage is in prospect, the courts have restrained publications
in the widest of terms but these have been in cases involving
security and intelligence officers who owe a life-long duty of
confidence or secrecy to the Crown (Att Gen v Punch [2003]
1 All ER 289 (HL); Blake v Att Gen [2000] 4 All ER 385;
R v Shayler [2002] 2 All ER 477 (HL)). Our groups do not
owe duties in such absolute and general terms although durable
duties of confidence may be owed in respect of particularly sensitive
information. An additional factor to consider is the question
of Article 10 ECHR rights of freedom of speech within the Human
Rights Act 1998 (see below). S.12 of the HRA gives considerable
protection against interim injunctions to those who wish to publish
information to safeguard their right to freedom of speech. (Cream
Holdings v Bannerjee [2004] 4 All ER 617 (HL).
CONTROLLING PUBLICATION:
APPROVAL AND
REMEDIES FOR
WRONGFUL BREACH
8. The alternative approach is not to pursue
injunctions but to ensure that members of the four groups seek
permission to publish memoirs, or when they fail to request and
obtain such approval, to remove the profit from the wrongdoing.
9. Employer/employee relations are those
of a confidential nature and whether in the private or public
sectors. What caused some confusion in the case of the groups
under discussion was that conventionally Crown servants were not
considered to be under contracts of employment. I avoid a complex
analysis by simply saying that treating signed and express clauses
in agreements between Ministers, civil servants, diplomats and
private advisers on the one hand and the Crown on the other would,
in principle, be legally binding and enforceable. The nature of
the legal duty would be spelt out (below). The position in relation
to intelligence officers was discussed in Blake v Att Gen [2000]
4 All ER 385 where the legally binding nature of a contractual
undertaking "not to divulge any official information gained
by me as a result of my employment, either in the press or in
book form" [media was not mentioned] was accepted without
question by the Law Lords as a continuing contractual duty. The
undertaking was in the signed declaration for the OSA. The breaches
of duty by Blake were exceptional and devastating, and called
for exceptional remedies, but the principle of a binding contractual
duty is accepted. I doubt that in principle its application to
Ministers or Crown servants etc would be questioned although these
persons are not under the life-long duty of secrecy that binds
SIS officers. I say `in principle' but the difficulty of detail
will be dealt with below. I can see no public policy reason that
would negate at the threshold a legally binding agreement of this
nature.
10. In terms of political memoirs the position
is presently addressed by the Radcliffe Rules and by the Ministerial
Code (2005—under revision). For civil servants and diplomats
the relevant provisions of the Civil Service Code and the diplomatic
analogue (DSR) set out restrictions on publishing materials based
on their experience in office. In the case of special advisers
the model contract for special advisers states that: "You
must comply with the rules on the publication of personal memoirs
and books based on official experience set out in the [Departmental/Staff
Handbook] (15f)."[2]
11. Using official documents for quotations
and as a basis for publications could fall under the provisions
of Crown copyright under the Copyright etc Act 1988. Copyright
is not the same as confidentiality. . . . Copyright protects the
property (simply expressed the "words") of an author
of original literary works in which original skill and labour
were expended in their creation. Copyright does not protect information.
Confidentiality does. Copyright cannot prevent access to information.
But copyright can prevent copying or re-use of that information.
S.163(1)(b) of the 1988 Act gives the Crown a broad basis of copyright
protection. The section states that where a work is made by Her
Majesty or by an officer or servant of the Crown in the course
of his duties Her Majesty is the first owner of any copyright
in the work. `Course of his duties' is a critical phrase in this
context—what precisely does it cover? The claim would be
brought by the Attorney General. For the ambit of those engaged
in the executive branch of government see Laddie, Prescott and
Vitoria The Modern Law of Copyright and Designs 3rd ed
para 36.4. A copyright can be assigned to another party (assignee)
by an author. The assignee may then exercise the rights of copyright.
Assignment would avoid the difficulties in determining "course
of his duties", but assignment would present other difficulties.
I discuss assignment in paragraph 14 below in the context of the
present discussion. That officials may hold copyright on a constructive
trust for the Crown has been mooted in the Spycatcher litigation
in the courts at all levels of jurisdiction (above at pp.567,
621, 643, 654-55) and by Scott VC in Blake ([1996] 3 All
ER 903 at 912). I say "mooted" within the English jurisdiction.
The constructive trust device has been used successfully in the
USA [see para 17 below].
12. Since the Crossman diaries litigation
there has been no reported case law on attempts either seeking
to restrain judicially publication of memoirs or to obtain compensation
for publication in breach of guidance or administrative rules
in cases other than those relating to SIS officers. The Blake
litigation in the House of Lords shows that compensation is possible
but the special facts of Blake make the case easily distinguishable
from the present concerns. To what extent might it be feasible
to impose legally binding undertakings and what problems might
be presented by such a course are questions dealt with below.
LEGALLY BINDING
AGREEMENTS
13. We have moved on a great deal since
Radcliffe reported but his observations on the limits of law and
its utility in this area are still germane. He wanted a system
in which the "habits of reticence" were honoured. I
would, however, suggest that the only possible way to improve
upon the practice recommended by Radcliffe and which most, if
not all, agree has broken down is to incorporate agreements not
to publish into legally binding agreements between Ministers,
civil servants, special advisers and diplomats on one hand and
the Crown on the other. In sum, I see no reason in law why legally
binding agreements could not be entered into by the respective
bodies. The pressing questions then become: what would such agreements
cover; what remedies could be invoked; and what are the prospects
of such agreements being enforced? This latter point necessarily
involves discussion of procedures to ensure compliance.
14. The Undertaking: An agreement
signed by the relevant parties would state that it was a legally
binding undertaking not to publish any material or information
possessed/acquired/used or relating to [a minister's/civil servant's
etc . . .] employment in, or experience derived from, Crown service
in book/media or other form unless the material had been approved
by responsible authorities. The Minister/civil servant/adviser/diplomatic
member would agree that until such approval is given, the copyright
in any such material will be owned by [assigned to] the Crown
and the material would be regarded as confidential. Where the
material is approved, copyright will revert to the author and
any confidentiality will come to an end. Where publication takes
place without authorisation, the Crown will pursue any available
remedies by way of an account of profits or damages—standard
remedies for breach of copyright—as well as other remedies.
If there is a question of a breach of the OSA then any appropriate
prosecution may have to be considered. This makes legally enforceable
an arrangement which Radcliffe saw operating voluntarily and without
legal nicety—that `continuity of a general understanding
between a succession of people that counts' (para 59). It adds
the support of copyright (which is crucial), and contract law.
The views of those responsible for its operation would have to
be sought for their opinion on its operability. It should also
be borne in mind that the prospective author may by-pass any proposed
procedure agreed to by the undertaking without consent 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 publication overriding the undertaking (below).
15. The Procedure: The undertaking
would specify that consent to publish will not be withheld unreasonably
nor for an unreasonable period of time. Anything that smacks of
unjustifiable censorship or oppression will be legally fruitless,
and deservedly so. There would be maximum encouragement for negotiation
around acceptable details. Details of parameters and time schedules
would be explained in published guidance. A procedure involving
the Head of the Civil Service and relevant Permanent Secretaries
seems appropriate. One might wish to note that in March 2006 an
independent adviser (the former Comptroller and Auditor General)
was appointed to adjudicate on Ministerial conflicts of interests,
a post recommended by the Committee on Standards in Public Life.
There might advisedly be a right of appeal to a body independent
of those officials. This might comprise a mixture of Privy Councillors
as Radcliffe suggested—but how independent would such a
body be seen to be? Furthermore, to take on board the presence
of the Human Rights Act and art 6 ECHR, such a body, if created,
would have to have a statutory basis and operate judicially and
independently. There is in existence an Information Tribunal now
established under the terms of the FOIA to hear appeals on disclosure
under that Act and under the DPA (there is also in existence a
Copyright Tribunal). The Information Tribunal's existing frame
of reference is statutory. It would require statutory authorisation
to act as an appeals panel in memoirs' cases. Its statutory remit
would also have to be addressed carefully: it would not be dealing
with a FOIA jurisdiction covering exemptions and disclosures under
FOIA, although aspects of that jurisdiction might interconnect
with memoirs' cases on, for example, the public interest in disclosure.
The very broad range of ss.35 and 36 FOIA protecting policy formulation
and protecting against prejudice to the effective conduct of public
affairs should be considered. These provisions, seen by many as
too broad for their purpose, are subject to a public interest
test. An appellate tribunal would be hearing appeals on highly
charged and sensitive matters of judgment often involving combative
or aggrieved individuals. One might seriously question whether
the Information Tribunal would be suitably positioned to hear
such appeals. Might it be possible to co-opt special members for
such cases? Might a senior judge, a former Cabinet Secretary unconnected
with the case and a `disinterested' newspaper editor be an appropriate
mix? One could argue it is getting a little top heavy. Nevertheless,
I remain of the view that if an appellate body is deemed necessary,
it will have to satisfy human rights requirements under Art 10
ECHR—there is prima facie an interference with freedom of
expression by the contract clause and any body hearing appeals
would have to determine whether the restriction was for a pressing
social need, necessary and proportionate. As I show below, these
are very demanding tests. If this statutory appellate route were
adopted, an appropriate moment for legislation would have to be
chosen.
To sum up a statutory procedure would involve:
a stipulation that the Crown owns copyright as specified above
in written agreements; a procedure involving the Head of the Home
Civil Service and [ . . . ] in giving approval for publication
and releasing the copyright to the author; an appeal to a tribunal
against a refusal to permit publication either in whole or in
part; a right of appeal on a point of law to the High Court.
16. In the absence of such an appeal mechanism,
there would be the fall back of a challenge to the courts to determine
the legality of any restriction or refusal to publish. Such a
challenge would involve the "anxious scrutiny" of the
Human Rights Act and the closest of judicial attention (see Lord
Bingham in R v Shayler [2002] 2 All ER 477 (HL) paras 29-36).
Nobody on the government side would wish for dirty washing to
emerge from this process. Indeed, even with such an appellate
body judicial challenge of its decision would be available if
there was not a statutory appeal to the courts. The prospective
author will be contesting the nature of his contractual rights
and their judicial determination. This is ultimately a matter
for the courts. There is a question of which procedure applies—public
or private law as contractual matters involving government are
usually determined by private law process.[3]
17. The Remedy: I have already
stated the remedy from this breach would be an account of profits.
This was the remedy that was employed by the law lords in Blake.
In America, a breach of constructive trust has been used to extract
compensation for wrongful publication in breach of an agreement
by a former CIA operative to engage in prior review of the manuscript
(Snepp v. US, 444 US 507 (1980). The agreement, made at
the beginning of the agent's employment, covered all information—classified
and otherwise—but the court only dealt with unclassified
information). Blake broke new ground in English law because
it was a remedy usually reserved for copyright or breach of confidence
claims and not for breach of contract. Despite the outcry from
contract purists, the reasoning in the case in relation to the
remedy has been supported in subsequent case law. Scott VC recoiled
from stating that Blake was a fiduciary because of the total control
this would give to government over officials in his position—it
could prevent such a person from ever using their experience gained
in office for perfectly proper purposes. For Lord Steyn, however,
Blake's position was akin to a position of special trust and that
relationship and undertaking had been betrayed by publication.
Blake's actions as a spy had led to the deaths of many agents.
It was difficult to assess any damage to the Crown by publication
of the book—the information was no longer confidential and
was widely known (had it been confidential then Attorney-General
v. Guardian Newspapers Ltd (No. 2) ([1990] 1 AC 109) shows
that an account of profit would be permissible). In the circumstances,
the remedy by way of an account of profits in Blake was
most appropriate—if somewhat creative and its exceptional
nature was emphasised. It is `exceptionally' available where general
remedies for breach of contract are inadequate and the claimant
has a legitimate interest in preventing the defendant profiting
from a breach. The past and future activities that attract the
concerns of the committee in this inquiry are not of this order.
Without such an agreement as drafted above the courts might be
reluctant to extend Blake to the publications of the present
group of authors absent the most egregious breach of duty. The
agreement as drafted above makes specific and express provision
for an account of profits or damages and would state that the
agreement is legally binding. Where a remedy in damages would
be more appropriate this could be claimed as an alternative or
in conjunction with an account.
18. Prospects: The difficulties in
this procedure are obvious from past practice. It seems to me
that a weakness in approach to date has been the limp-wristed
or confused reaction seemingly taken against those who breach
their trust. The Crossman litigation has not encouraged a robust
approach. The "old state of indeterminacy" criticised
by Radcliffe (61) before that litigation has persisted since that
time. And quite simply, one is not going to stop publications
by former Ministers and senior officials where they remain resolutely
determined to publish. In the case of Ministers, evidence has
been given of outright refusal to sign such undertakings of non
publication—Radcliffe recommended that Ministers should
sign a declaration of notice of the contents of his recommended
rules (para 71). The point is of course that refusal is easier
when one is in office. Is it likely that such refusal would be
as steadfast before ministerial appointment? Most officials, civil
servant or diplomatic, would not wish to breach guidance, whether
administrative, legal or otherwise, and there is a dramatic recent
example of that in Greenstock's memoirs. If an individual feels
impelled to justify him or herself from a sense of grievance or
if they wish to inflict harm on opponents and loss of profits
is not a concern, there is little that can be done unless the
memoirs are in breach of OSA and a criminal matter, or defamatory
and might possible meet with exemplary damages. Even then, the
prospect of a civil or criminal trial would be unlikely to deter
action. Unless sensitive national security or diplomatic information
was involved the prospects of secret trial would be unlikely.
The picture could be deeply embarrassing. There may well be a
significant public interest factor present in what is written.
19. The Public Interest Factor: The
public interest in disclosure has been afforded a widening interpretation.
Originally confined to wrongdoing, it would now apply to information
which it was genuinely in the public interest that it should be
publicised. It would include a public interest in not being misled;
or publication of that which is a matter of public concern. To
give further illustration, a revelation might expose the truth
about government operations and constitute a more candid public
record of events than the official record would suggest. It may
be of a very high public interest to reveal the feet of clay of
governors, their lack of judgement or errors from an insider's
perspective. Publication may be justificatory as an aspect of
self defence. Prevention of publication may amount to an unjustified
interference with a right to freedom of speech and signing of
declarations or undertakings may be regarded as possessing an
unlawful `chilling effect' on such a right. Furthermore, one must
face the fact that what is being sought is an opportunity to see
and if necessary attempt to influence the scope and tone of what
is published and to give that opportunity a more realistic chance
of success. Unless the content showed clear damage to the public
interest, it may be difficult to argue with confidence that such
an undertaking would be enforceable to obtain an account of profits
after publication. If the courts would not prevent publication
by injunction, they may well be reluctant to enforce agreements
that have a chilling effect on freedom of speech. In other words,
if an agreement were tested there would have to be the clearest
of public interest grounds not to publish for it to withstand
scrutiny. Contrariwise, the courts may not stop publication, but
they may make an order for an account of profits because the author
has acted in breach of an undertaking but not in any sense that
upholds a public interest in publishing. The courts have emphasised
that contractual obligations of confidentiality are no more resistant
to public interest disclosure that other duties of confidentiality—see
Sedley LJ (with whom Aldous LJ agreed) in London Regional Transport
& Anor v Mayor Of London & Anor [2001] EWCA Civ 1491
[2003] EMLR 4:
"55. Whether or not undertakings of
confidentiality had been signed, both domestic law and Art. 10(2)
would recognise the propriety of suppressing wanton or self-interested
disclosure of confidential information; but both correspondingly
recognise the legitimacy of disclosure, undertakings notwithstanding,
if the public interest in the free flow of information and ideas
will be served by it.
20. Robert Walker LJ in the same case at
para 46 stated :
"No authority has been cited to the court
establishing that an apparent breach of a contractual duty of
confidence is more serious, and is to be approached differently
(as regards injunctive relief) than other apparent breaches. Indeed
in many cases (of which Lion Laboratories [1985] QB 526)
is an example) the defendants include ex-employees who had been
in contractual relations with the claimant, and representatives
of the press who were not bound by contract, but the court adopts
the same approach to both. That is in line with the principles
stated in the judgment of Bingham LJ in Spycatcher (above); and
see Saltman Engineering Co (above).
21. Copyright and the Public Interest: It
should be recalled that the agreement outlined above (para 14)
assigns copyright to the Crown and does not simply provide for
protection of confidentiality. However, a public interest test
applies to overrule copyright as well as confidentiality (Ashdown
v Telegraph Group Ltd [2001] 4 All ER 666 (CA): s.171(3) Copyright
etc Act 1988—although the precise scope of the public interest
in relation to overruling copyright and its similarity to the
public interest in confidentiality await fuller clarification).[4]
In HRH Prince of Wales v Associated Newspapers [2006] EWHC
522 Ch, there is a discussion of various defences against a breach
of copyright claim under the `fair dealing' provisions of the
Copyright etc Act 1988, s.30 (1) and (2) and the public interest
provision in s.171(3). This discussion is hinged upon the usual
context of a breach of copyright claim where a newspaper is seeking
to justify a breach of copyright owed by the original author.
If assignment were to take place, then the dispute would be between
the author (assignor) and the Crown (assignee) whereby the latter
would seek to prevent publication by the original author. This
adds an interesting complication, given the freedom of expression
and public interest factors that could easily be involved, to
the usual dispute between an author and a publisher in breach
of copyright. The case law suggests that while repetition of original
extracts may be permissible for criticism, debate on current affairs
or a possible wider public interest, wholesale verbatim repetition
is unlikely to be justified to the detriment of the author.
22. Freedom of Speech: I think
particularly pertinent to public interest discussion and the tests
applied by judges is the following from Shayler [2003]
1 AC 247, where Lord Bingham said at para 21:
The reasons why the right to free expression
is regarded as fundamental are familiar, but merit brief restatement
in the present context. Modern democratic government means government
of the people by the people for the people. But there can be no
government by the people if they are ignorant of the issues to
be resolved, the arguments for and against different solutions
and the facts underlying those arguments. The business of government
is not an activity about which only those professionally engaged
are entitled to receive information and express opinions. It is,
or should be, a participatory process. But there can be no assurance
that government is carried out for the people unless the facts
are made known, the issues publicly ventilated. Sometimes, inevitably,
those involved in the conduct of government, as in any other walk
of life, are guilty of error, incompetence, misbehaviour, dereliction
of duty, even dishonesty and malpractice. Those concerned may
very strongly wish that the facts relating to such matters are
not made public. Publicity may reflect discredit on them or their
predecessors. It may embarrass the authorities. It may impede
the process of administration. Experience however shows, in this
country and elsewhere, that publicity is a powerful disinfectant.
Where abuses are exposed, they can be remedied. Even where abuses
have already been remedied, the public may be entitled to know
that they occurred. The role of the press in exposing abuses and
miscarriages of justice has been a potent and honourable one.
But the press cannot expose that of which it is denied knowledge".
23. And in Mersey Care NHS Trust v R.
Ackroyd [2006] EWHC 107 there is an emphatic judgment in support
of freedom of speech. The truth is that memoirs by star "insiders"
are often of interest to the public as political soaps and publication
may additionally be in the public interest.
24. That said, the 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 (see below). "Necessary" is a very demanding
test.[5]
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 title tattle, gossip, bad taste
or opinion. The restraint agreed to would have to be proportionate.[6]
Crown bona fides might be enhanced by an undertaking to donate
any litigation gains to a good cause.
ARTICLE 10
1. 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. This article
shall not prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms,
since it carries with it duties and responsibilities, may be subject
to such formalities, conditions, restrictions or penalties as
are prescribed by law and are necessary in a democratic society,
in the interests of national security, territorial integrity or
public safety, for the prevention of disorder or crime, for the
protection of health or morals, for the protection of the reputation
or rights of others, for preventing the disclosure of information
received in confidence, or for maintaining the authority and impartiality
of the judiciary.
TIMING
25. A crucial factor is the timing of a
publication. Radcliffe's fifteen years for confidential relationships
seems hopelessly unrealistic although he did not recommend a legally
binding procedure. It was ultimately voluntary—based upon
"rules of reticence" (para 65). As Radcliffe also recognised
questions of timing are also fact sensitive and do not easily
accommodate arbitrary limitations. Perhaps it is better to place
no limit in rules but to offer detailed guidance as suggested
above on what should be avoided. To most what should be avoided,
and which is not presently proscribed by law, is pretty obvious:
that which is salacious and marketable; the very thing publishers
wish to publish.
BROADCASTS
25. Radcliffe also commented upon broadcasts
as well as publications. Where these do not contain a prepared
written text it is difficult to see what limitations can be placed
on them unless the broadcast amounts to a serious breach of confidentiality
which simply begs the question.
DIARIES
26. A ban on taking personal diaries into
Cabinet or official meetings does not seem disproportionate. Attempting
any further restriction on diaries would be risible.
CONCLUSION
27. If the contractual route will not operate
successfully and if the self denying ordinance has broken down
in too many cases for comfort then quite frankly it is difficult
to see what might work. What else can be offered apart from "Let
them publish and let the public make their judgement." 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.
I leave unexplored any disciplinary action that might involve
diminution of pension rights.
2 27. Civil servants, including Special Advisers,
must not publish or broadcast personal memoirs reflecting their
experience in Government, or enter into commitments to do so,
while 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. They must submit any manuscripts for comment
to the Head of the Home Civil Service in advance of publication.
28. Under the terms of the Civil Service Code, Special
Advisers should continue to observe their duties of confidentiality
after they have left Crown employment.
http://www.cabinetoffice.gov.uk/propriety_and_ethics/publications/doc/model_contract_speical_advisers.doc Back
3
Involving as the problem does questions of public entitlement
and human rights, it may be that public process via judicial review
is more appropriate. It is unlikely that the choice of procedure
would prevent a full ventilation of relevant questions. Back
4
See eg Beloff v Pressdram Ltd [1973] 1 All ER 241; Lion
Laboratories v Evans [1984] 2 All ER 417. Back
5
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
6
See Lord Steyn in R (Daly) v Secretary of State for the Home
Department [2001] 3 All ER 433 (HL). Back
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