The publication of political memoirs
4. Our report in 2006 called for a clearer and
fairer system for agreeing that the material to be published was
in the public interest, and recognised a need for some ability
for government to enforce the results of that clearance process.
Our guiding principle was that while there should be a presumption
in favour of openness, it needed to be balanced against a countervailing
public interest in restraint of the publication of material which
ought properly to remain confidential. A particular concern was
that ministers' and civil servants' necessary trust in each other
was being eroded by books like Sir Christopher Meyer's, which
clearly angered many ministers with its disclosures of confidences.
Since then, David Blunkett's war of words with the former Prison
Service Director-General Martin Narey may have had the same effect.[6]
It was clear from our inquiry that the Government's sole traditional
recourse against disclosure of information, that of seeking an
injunction to stop publication, was not only usually unsuccessful,
but also drew a great deal of attention to the book in question.
It was last attempted in the case of Peter Wright's writings on
the Spycatcher case in 1988, although even government threats
of legal action have allowed the likes of Derek Scott (a former
economic adviser in Number 10) to market their work as "the
book they tried to ban".[7]
5. The specific mechanism we suggested was the
use of confidentiality clauses in contracts and Crown Copyright
on official information, coupled with independent arbitration
on disputes about what might be published.[8]
Incoming members of government in any capacity would agree that
until they received approval to publish it, any unpublished material
from their time in office would be regarded as confidential. Where
publication was approved, copyright would revert to the author
and the material would cease to be confidential; but if publication
took place without authorisation, copyright would belong to the
Crown, and so it would be possible for the Crown to pursue through
the courts remedy for breach of copyright. In practice, this would
most likely mean that the profits raised by the book would pass
to the Crown, possibly along with some damages. Such a system
would undoubtedly be a powerful disincentive for publishing without
authorisation.
6. However, we do not believe that the Government
is the right body to determine the relative public interests in
disclosure and confidentiality of information. Here, we agree
with Sir Christopher Meyer that "there is no intrinsic reason
why a group of civil servants should be a better judge of [public
interest] than one individual".[9]
Where there is a dispute
between an author of memoirs and the Government, it does not seem
right that the Government should be the arbiter of that dispute
as well as a party to it. We suggested,
therefore, that it would be appropriate to have an appeal mechanism
if agreement could not be reached, on a proposal, or a text, or
on timing. Our proposal was that a small committee of Privy Counsellors
or other senior figures could be used, to be known as the Advisory
Committee on Memoirs. That Committee might have contained former
experienced politicians from more than one political party, a
former senior public servant and a member of the judiciary.[10]
7. The Government's response to our report contained
much that was positive. Indeed, we found the Government were in
complete agreement with most of our recommendations, notably our
belief that the bias should always be in favour of publication,
and the few possible justifications for non-disclosure of particular
information. The Government also accepted the need for a balance
between competing public interests, and agreed that ministers
should not criticise named civil servants in their memoirs. Most
significantly, the Government has acted on our suggestion of enforcing
the approvals process through confidentiality clauses and the
application of Crown copyright.[11]
8. However, the Government did not accept our
recommendation that there should be an Advisory Committee for
Memoirs:
The Government believes that there should be an ongoing
dialogue with prospective authors to reach agreement. The Government
is not however attracted to the establishment of an Advisory Committee
on Memoirs as it believes that ultimate responsibility for deciding
on the balance of the public interest must rest with the Government
of the day and that the establishment of an additional appeals
mechanism would only serve to dilute the lines of accountability
and add an unnecessary additional layer to the approvals process.[12]
9. We were not convinced by this argument, and
asked for a better one from Sir Gus O'Donnell, the Cabinet Secretary.
However, he did not manage to expand on the Government's position
very helpfully:
On the question of whether it should be an independent
thing, in the end the Government decided that it was right for
the government of the day to make these decisions in terms of
choosing in the public interest.[13]
10. We do not accept that the
government of the day is best placed to judge whether it is in
the public interest for particular information to be published.
This does not seem consistent with the principle of freedom of
information. We are disappointed, therefore, that the Government
did not concede the logic of some form of appeal of its decisions,
along the lines of an Advisory Committee for Memoirs. The application
of our suggestions on confidentiality clauses and copyright without
a commensurate appeals process shifts too much power from putative
memoirists to Government.
11. It is striking that the Government's response
to our report does not in any way address the interaction between
the regimes for approving memoirs and for administering the Freedom
of Information Act (2000). Instead, it has devised an approach
where if an author should want to publish something he or she
knows to be true, but the Government believes it is not in the
public interest for it to be published, it can forbid publication
without any possibility of appeal to an external arbiter. We do
not see why, if that happened, the author could not put in a request
under the Freedom of Information Act for the information he or
she wants to publish. If this path was followed, then suddenly
the Government's decision on public interest would not be final,
but subject to appeal to the Information Commissioner - and indeed
to another appeal after that, to the Information Tribunal. If
either of these bodies ruled that the information should be disclosed,
the author would now be free to publish it - but of course some
time would have passed by this stage.
12. The approach taken to judging
public interest in publication of memoirs should be consistent
with the approach taken to judging public interest in disclosure
of information under the Freedom of Information Act. By passing
that Act, the Government has accepted the principle that it cannot
be the Government which is the ultimate arbiter of whether it
is in the public interest for a particular piece of information
to be published. It is indefensible to deny that principle in
the specific circumstances of political memoirs. Indeed, we are
not sure that the courts would uphold any bid by the Government
to pursue remedy for breach of copyright when the decision to
prohibit publication of certain information had not been tested
independently of government.
13. We continue to believe that
a new Advisory Committee on Memoirs would make for expert and
specialised arbitration of issues around the publication of public
service memoirs. However, although this argument was not put to
us by the Government, we can see that one argument against such
an Advisory Committee would be that it would involve the creation
of yet another new regulatory body, with all the expense and bureaucracy
that entails. Given the rarity of disputes over the content of
memoirs, it may well be disproportionate to create a new body.
However, there is another possible solution readily to hand. If
we accept the principle that an independent body should judge
the public interest in publication of particular information in
memoirs, then there is already an independent body which specialises
in applying public interest tests to disclosure of information
which Government does not want to reveal. That body is the Office
of the Information Commissioner.
14. An alternative to an Advisory
Committee on Memoirs is that the Information Commissioner could
arbitrate where there are disputes in the negotiation of the content
of memoirs. The Commissioner is experienced at balancing competing
public interests in openness and necessary confidentiality. In
applying the Freedom of Information Act, the Commissioner is accustomed
too to the entirely appropriate bias towards publication. Although
the Commissioner would not necessarily have the nuanced understanding
of issues around memoirs which an Advisory Committee could provide,
allocating this role to the Commissioner would be simple, consistent
and cost-effective. Whatever model is preferred, we call on the
Government to make one final reform to complete a fair, practical
system for approving memoirs.
Commentary by former public servants
15. Memoirs are not the only means by which former
ministers and civil servants share their experiences in government
with the wider public. There is a range of communications media
which can give a voice to those who have once been on the inside
of the executive branch. Former ministers in particular are often
found writing newspaper columns or giving interviews in print,
on radio or on television, while many of course remain Members
of one or other House of Parliament. While former civil servants
appear less frequently in these media, there are occasions when
their expertise can make them particularly informative commentators,
and it is clearly in the public benefit for them to participate
in public discussion.
16. One of the findings of our last inquiry into
political memoirs was that differing approaches were taken by
the Home Civil Service and the Diplomatic Service in respect to
what public comments were allowed by former staff. The then Foreign
Secretary, Rt Hon Jack Straw MP, responded to this during our
inquiry by making changes to Diplomatic Service Regulation 5 (DSR
5), ostensibly to bring it into line with the Civil Service Management
Code. His full written ministerial statement is provided below.
