Select Committee on Public Administration Written Evidence

Memorandum by Professor Patrick Birkinshaw


  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.


  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).


  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.


  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.


    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.


  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.


  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.


  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.


  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. 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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