Select Committee on Public Administration Written Evidence

Addendum: The Revised Diplomatic Service Regulations and the Cabinet Office Memorandum of March 2006: The Publication of Political Memoirs.

  (i)  After the above advice was drafted, a revised DSR5 on Use of Official Information or Experience etc (2 March 2006) was sent to the Committee together with a Memorandum from the Cabinet Office on The Publication of Political Memoirs.

  (ii)  The text of DSR5 appears to be in final form. The revisions are described as adding "nothing substantially new". The Cabinet Office memorandum is a statement of policy and intent. The Guidance on application of DSR5 states that the amendments "bring DSR5 . . . into line with Cabinet Office rules." A statement on the DSR revision was made by the Secretary of State for Foreign Affairs on 6 March 2006. This statement refers to the amendment of individual contracts of employment and notices to take on board the revisions and that staff will agree to be "bound" by the undertakings. This sounds like an intention to create a legally binding agreement. All officials who are sent a copy of the revised regulation (SMS and non SMS Heads of Staff) will have to click a "Read and Agree" button attached to the message to confirm that they have read and understood the message and that they agree to be bound by the terms of DSR 5 as revised. The notice on publication and confidentiality will be repeated at important stages of career development. The latter provisions on undertakings and notice are new.

  (iii)  This method of agreeing and confirming the terms of the notice would appear to satisfy objective requirements of evidence of agreement and would be legally binding. However, the CO memorandum speaks of relevant staff "signing" such undertakings.

  (iv)  The DSR makes no reference to assignment of copyright as outlined in the advice above. The Cabinet Office Memo contrariwise explains that "individuals will be asked to assign copyright to the Government of future works". Given the statement about the effect of the amendments and the bringing of them into line with Cabinet Office rules quoted above, is DSR5 to be amended along these lines? One may ask why such an important point has not been incorporated within the existing revision of DSR5?

  (v)  DSR5 as revised pays no attention to what remedies are available to the Crown where an official or former official acts in disregard of the regulation although it does refer to misconduct procedures summarised at DSR 27 in the case of existing officials. Para 9 does refer to Crown copyright but to the provisions of the 1956 Copyright Act which is repealed and now superceded by the 1988 Copyright etc Act (see above), although the substance is the same. This is a reference to the Crown as first owner of copyright not as assignee. The reference to the old statute is perplexing. It might indicate a lack of familiarity with copyright law. The paragraph explains the role of the Controller of HM Stationery Office and the Office of Public Sector Information where copyright is involved. The reference is to copyright by virtue of s. 163(1)(b) of the 1988 Copyright etc Act and not to assigned copyright which is dealt with in the above advice. In other words, it will raise the very difficult question of what precisely is covered by Crown copyright within s.163(1) (see para 11 above).

  (vi)  Unless there is a breach of criminal law or the civil law of confidentiality or copyright as outlined above in the first advice, it is difficult to see what advantages may flow to the Government legally where an individual is intent on publishing memoirs in purported breach of an undertaking. If an agreement is breached by a former official (the most likely scenario) then there are remedies for breach of a legally binding undertaking. But these remedies are unlikely to be anything other than nominal damages where the information itself does not attract the law of confidentiality (see above). The remedy fashioned by the House of Lords in Blake's case (above paras 12 and 17) was described by the Law Lords as `exceptional'. Furthermore, the new provisions can only cover existing officials; former officials will not have signed the revised undertakings and will be governed by the existing regime. DSR5 has been tightened up in its revision. Its efficacy is likely to operate on the strength of its intimidatory character rather than its strictly legal effects.

  (vii)  There is, to repeat, a tightening up of the substance of the regulations. The revisions in DSR5 cover in addition to areas where the public interest is likely to be damaged by publication (national security, international relations) areas which were addressed by Radcliffe but where legal restraint has not been effective or non-existent—"a never precisely definable area of government confidentiality" (para 69). These include publications that:

    —  would be destructive of the confidential relationships between Ministers and between Ministers and officials

    —  Create the possibility of embarrassment to the government in the conduct of its policies (as opposed to embarrassment brought about by Government's own deficiencies)

    —  That would bring into question the good name and impartiality of the Diplomatic Service

  (viii)  There is a legitimate ground for believing that publications outlined in bullet form may well be damaging to processes of government but the inability of the law to deal with such publications has been indicated. The areas highlighted attempt to protect that trust and professionalism that should be at the centre of relationships between Ministers, and between Ministers and senior advisers, but on which the law has proved ineffective unless a disciplinary framework exists to provide a sanction over existing diplomatic or civil servants and advisers. The ability of the revised regulations to deal with such publications where the author is intent on publication has to be questioned. In the vast majority of cases authors will not wish to publish in breach of the regulations and the revised format will give emphasis to the restrictions and reinforce inhibitions.

  (ix)  The revision also includes a reference to media programmes, lectures, interviews and so forth. This repeats the substance of the former DSR5. In reality, as the FCO acknowledge (PPM 10) it is "neither practical nor reasonable to require that no retired FCO officer may speak publicly on a matter with a bearing on his or her past employment as a Crown Servant without first clearing lines with the FCO."

  (x)  The revised regulations do emphasise that permission has to be sought before any commitments are entered into with publishers and clearance has to be given for any text with specified periods of notice. The two stage process is spelt out.

  (xi)  Where material is "confidential" as set out in the revised DSR5 (not where it breaches a legal obligation of confidentiality), Radcliffe's suggested period of embargo of fifteen years is repeated, although this period is context sensitive and specific. Depending on circumstances, a shorter period or longer period may suffice, the revision states. Even with an undertaking as envisaged in DSR5, I find it difficult to see why this time constraint should be any more effective than the Radcliffe limitations. Radcliffe did not envisage a legally binding undertaking; ministers would sign a declaration that they had notice of the rules on confidentiality. Their application would depend upon good form. Departments would devise their own procedures for civil servants (para 71). A strong public interest in publication and human rights' considerations are unlikely to be defeated by such time constraints. Everything depends on context.

  (xii)  I have already outlined the provisions in the CO memorandum in relation to assignment of copyright for future works and serialisations and my advice above addresses this point. The memorandum says that the CS Management Code will make it "more explicit" that permission must be sought by former civil servants from the Head of their former department and from the Head of the Home Civil Service before commitments are entered into and that a copy must be submitted "in good time" of any proposed text which draws or appears to draw on official information or experience. Staff in "sensitive posts" (as defined by Permanent Secretaries for their departments) will have to sign agreements that they will abide by the rules and that they assign copyright. Reminders will be made at regular intervals of these obligations. To repeat, the revised DSR5 makes no reference to assignment and this is a serious weakness from the Government's perspective.

  (xiii)  The Committee may wish to consider that there has been little public discussion by the authorities of any comparable revision of rules relating to Ministers—the focal point of Radcliffe's inquiry and report. This matter was given added importance by the evidence of Ministerial intervention in decisions affecting former diplomats (Jack Straw, 29/03/06) although no formal locus is given to Ministers under the regulations.

27 April 2006

previous page contents

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2006
Prepared 25 July 2006