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
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