Appendix
The Government is grateful to the Committee for its
comprehensive review of the rules relating to the publication
of memoirs. In preparing its response, the Government has given
careful consideration to the Committee's report, representing
as it does the most thorough examination of the publication of
political memoirs since the Radcliffe report in 1976. The Government's
response to the Committee's conclusions and recommendations are
set out below.
The public interest in publication
Official histories perform a valuable function;
we applaud the financial support and access to papers which successive
governments have made available for them and recommend that this
practice continues. (Paragraph 32)
The Government welcomes the Committee's endorsement
of the Government's official history programme as performing a
valuable function. The programme, which has always enjoyed cross
party support, has been funded by successive Governments since
it was first set up before World War I and has produced scholarly
and well respected histories of major events in the contemporary
history of the nation. The Government agrees that this practice
should continue and the Histories, Openness and Records Unit of
the Cabinet Office is currently taking forward plans for the next
tranche of official histories.
There is no doubt that there is a strong public
interest in the publication of political memoirs and diaries.
They provide insights into the processes of government and the
nature of key events. The question is to what degree that public
interest needs to be balanced against other public interest considerations,
and how that balance is to be struck. (Paragraph 39)
The Government agrees with the Committee that there
is a strong public interest in the publication of political memoirs
and diaries. These have been published for many years, and provide
a valuable insight and understanding of how the Government and
the Civil Service work. We agree that the issue is one of balance
between the public interest in aiding awareness of the workings
of Government, and the risk that such disclosures could undermine
the relationship of trust between Ministers and civil servants,
including special advisers.
The public interest in restraint
What is said in memoirs may not simply reflect
change, but may itself bring it about. If it comes to be considered
unexceptionable for recently retired public servants to publish
memoirs which contain personal remarks about ministers and observations
on their policies, or if politicians start to identify and criticise
named civil servants in their memoirs, the terms of the "governing
marriage" would have altered to such an extent that it is
hard to see how traditional doctrines of ministerial and civil
service accountability could continue. (Paragraph 52)
The Government agrees with the Committee that the
relationships between Minister and Minister, and Minister and
official are critical in ensuring effective government. Like the
Committee, the Government agrees that there still remains a strong
public interest in maintaining a protected space for the confidential
discussions and frank advice which is essential for good government.
To maintain this relationship and the principles of ministerial
and Civil Service accountability it is essential that both Ministers
and civil servants uphold their respective parts of the agreement.
Memoirs and money
The strength of the market for sensational or
titillating material makes it even more important that there should
be a clear understanding about the kind of discretion necessary
to protect relationships inside government. We have no doubt that
some discretion is necessary, on both sides. The dangers do not
come from the single shocking memoir, but from the steady erosion
of confidence and trust driven by the prospect of commercial gain.
(Paragraph 58)
The Government agrees with the Committee that the
strength of the market for sensational or titillating material
makes it even more important that there should be a clear understanding
about the kind of discretion necessary to protect relationships
inside government. The Government's proposals on copyright (see
paragraph 19 below) aim to remove the financial incentive to produce
unauthorised memoirs.
Cabinet confidentiality
There has to be a degree of confidentiality within
government even in the relationship between politicians. Cabinet
government would not be improved if those around the table were
aware that any one or more of them was intending to publish their
own account of Cabinet the moment the meeting had ended. On the
other hand, it has long been accepted that politicians will legitimately
wish to give an account of their actions, and that this will involve
giving an account of the internal workings of government, including—after
an appropriate time—of Cabinet. (Paragraph 65)
The Government agrees with the Committee that there
has to be a degree of confidentiality within government even in
the relationship between politicians. The Ministerial Code clearly
states that Ministers may not, while in office, write and publish
a book on their Ministerial experience. In 2001, the Code was
strengthened, in order to protect Cabinet government, to make
clear that while in office, Ministers may not enter into any agreement
to publish their memoirs on leaving their ministerial position.
Ministers and civil servants
Free and frank exchanges between politicians and
civil servants depend on confidentiality and trust in government,
and this implies a degree of subsequent reticence on both sides.
As long as serving civil servants are not publicly accountable
for their actions and do not publish accounts of their experiences,
it would not be right for former ministers (or special advisers)
to criticise named civil servants who have no right of reply.
(Paragraph 68)
Civil service guidance and codes emphasise the
confidential relationship between ministers and public servants.
Public servants are only able to produce saleable reminiscences
as a consequence of their position in a non-political public service.
Former ministers have largely kept their side of the bargain;
public servants should be expected to keep theirs. (Paragraph
72)
The Government agrees that free and frank exchanges
between politicians and civil servants depend on confidentiality
and trust. If this relationship breaks down it will be to the
detriment of our system of government. The Government therefore
agrees that neither civil servants (including special advisers)
nor Ministers should criticise named civil servants in their memoirs,
and that memoirs by officials should respect the confidential
relationship between Ministers and public servants. This will
be clearly stated in the next version of the Cabinet Office publication
Directory of Civil Service Guidance which is currently being updated.
Special advisers
Special advisers occupy a special position, and
this brings special obligations of trust. They are closer in kind
to ministers than civil servants since they are politically appointed,
for a short time only. Unlike ministers, they are not politically
accountable in their own right. These considerations affect how
they should be treated in the matter of memoirs. An adviser who
publishes a juicy memoir may embarrass the minister who appointed
him, and betray the trust that was placed in him, but does not
necessarily undermine the relationship between politicians and
officials. Like ministers, though, they should not identify named
officials and their advice. (Paragraph 75)
The Government agrees with the Committee that special
advisers occupy a special position and that this brings special
obligations of trust. However, they are civil servants, and the
Government's view is that they should be subject to the rules
in the same way as other civil servants.
Diaries
The real issue is not that diaries are kept but
when they are published, and what they can properly include. While
current allocations of responsibility remain, it is appropriate
that politicians should have greater freedom than officials in
these respects. (Paragraph 78)
Like the Committee, the Government agrees that the
latitude allowed to Ministers in publishing their memoirs is explained
by the doctrine of accountability and that Ministers will naturally
wish to describe and defend their time in office.
The question of timing
As a general principle, the longer the memoir
writer waits, the more they may possibly reveal. The exact trade-off
will depend on the nature of the material, whether those who would
be affected by publication are still in office, and the author's
former position. A diary, as a more intimate account, is likely
to need a longer wait before publication in full. Although broad
guidelines may be helpful, a fixed time period before publication
is unlikely to be applicable to the variety of cases and circumstances.
(Paragraph 85)
The Government shares the Committee's view that it
would be difficult to apply a fixed time period before publication,
and believes that this should be considered on a case by case
basis.
The principles governing publication
The basic principles governing the publication
of memoirs should be stated in the same terms for ministers, civil
servants and special advisers, although there will be differences
in what it is appropriate for each group to publish. There should
be no room for prospective authors to claim that they were unaware
of the restrictions on their ability to publish, the criteria
against which the acceptability of manuscripts would be judged,
or the way in which those restrictions would be applied to politicians
or to public officials. We recommend that guidance should be based
on the following:
To ensure the good working of government, which
involves the maintenance of trust between ministers, and between
ministers and civil servants, there should be some restrictions
on the publication of memoirs and diaries.
In particular, authors should not include information
which:
a) may cause damage to international relations;
a) may cause damage to national security;
b) may cause damage to the confidential relationships
between ministers, and between ministers and civil servants,
or which would inhibit the free and frank exchange of
views and advice within government.
Examples of matters which could cause damage to
confidential relationships would include detailed accounts of
Cabinet meetings of the government of the day, discussion of particular
advice given to ministers by named civil servants, or disparaging
references to public servants by ministers or vice versa. There
is unlikely to be objection to discussion by former ministers
of their ministerial colleagues, who can account for themselves.
(Paragraph 93)
The Government shares the Committee's view that the
basic principles governing the publication of memoirs should be
the same for ministers, civil servants and special advisers, although
there will be differences in what it is appropriate for each group
to publish. The Government agrees with the Committee's definition
of information which should not be included in memoirs and diaries
and this will be clearly stated in the next version of the Directory
of Civil Service Guidance.
Approvals process
It is unrealistic to expect authors (whether ministers,
civil servants or advisers) to produce texts for clearance before
they have secured any sort of agreement with a publisher. The
rules should acknowledge that there may be discussion with prospective
publishers before clearance is sought. But any contract between
author and publisher should recognise that clearance will be needed,
and no detailed drafts should be sent to publishers unless they
have first been cleared. For its part, the Government must deal
with texts properly and expeditiously. A few days after a work
is submitted, prospective authors should be told how long clearance
is likely to take. The length of time involved will, of course,
depend on the nature of the work in question, but we believe that
three months should be the longest period necessary and clearance
should normally take a matter of weeks. (Paragraph 98)
The Government accepts that potential authors may
have discussions with prospective publishers before clearance
is sought. However, civil servants, including special advisers,
must seek the permission of the Head of their former Department,
and the Head of the Home Civil Service, before entering into a
contractual commitment with a publisher, and this requirement
will be made clearer in the Civil Service Management Code and
the Directory of Civil Service Guidance.
The Government agrees with the Committee that it
should deal with texts properly and expeditiously and that where
possible it should provide prospective authors with an indication
of how long clearance is expected to take. However, the exact
timeline in respect of an individual case will depend, amongst
other things, on the content and complexity of the book, on how
much notice is given, on the availability of appropriate officials
who need to be consulted, and on how much discussion is necessary.
All guidance should make it clear that, in the
first instance, approval for publication may have to be secured
by negotiation. At the stage when a text is in negotiation, it
seems to us appropriate that both ministers and public servants
should have the right to comment on what is proposed, and see
if agreement can be reached. (Paragraph 105)
The Government agrees with this recommendation.
However, we believe it would be appropriate to
have an appeal mechanism if agreement cannot be reached, on a
proposal, or a text, or on timing. In such cases, a small committee
of Privy Counsellors or other senior figures (to be known as the
Advisory Committee on Memoirs) could be used. If such a group
were to contain former experienced politicians from more than
one political party, a former senior public servant and a member
of the judiciary, it would be well placed to weigh the public
interest considerations involved and to give authoritative judgements.
Its membership should be agreed by the Leaders of the political
parties. (Paragraph 106)
There is no reason why the process should differ
for civil servants, ministers, special advisers and diplomats.
The new procedure should be included as an annex to the Ministerial
Code, the Civil Service Management Code, the Special Advisers
Code and the Diplomatic Service Regulations. This guidance should
be provided to all holders of public office when they are appointed,
and when they stand down. (Paragraph 107)
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.
Enforcement/Crown copyright and confidentiality
clauses
Clarifying the rules and the clearance process
would improve matters. However without some effective legal sanctions
they will remain no more than advice, and even complying with
the clearance process will be essentially voluntary. (Paragraph
117)
We need a system which leaves the final decision
on whether or not to publish in the hands of the author, as Radcliffe
proposed. But there should be a real incentive for the author
to take account of the Government and Advisory Committee's guidance.
(Paragraph 118)
We agree that statute law is not an appropriate
means for restraining publication. Not only is it unlikely that
any government would find time for such legislation, it is far
from clear that statutory provisions could be drafted which would
satisfactorily deal with complex considerations about confidentiality
and public interest without being too rigid and oppressive. However,
we believe there are nevertheless some legal means available to
encourage more consultation and negotiation over the publication
of memoirs. (Paragraph 121)
We support the Cabinet Office's action in clarifying
the contractual duty to clear any memoirs before publication,
and in requiring officials with access to sensitive information
to assign copyright in future works to the government, allowing
government to seek profits from unauthorised publication. The
same confidentiality clause should apply to civil servants, diplomats,
and special advisers. Potential authors must not be left in any
doubt about the nature of the agreement they are entering into.
(Paragraph 135)
The Government welcomes the Committee's endorsement
for its proposals to clarify the contractual duties on the clearance
of memoirs and the assignment of copyright. The Government agrees
with the Committee that the same confidentiality clauses should
apply to all civil servants, including diplomats and special advisers,
in sensitive posts as determined by Permanent Secretaries and
that potential authors should not be left in any doubt about the
nature of the agreement into which they are entering. The Government
will also ensure that civil servants are reminded of their obligations
at regular intervals. Letters of appointment and on retirement/resignation
will also include reminders of the rules.
Ministers are not in a contractual relationship
with government, and have in the past resisted all attempts to
make them formally subscribe to rules on publication. We consider
that Radcliffe's recommendation that ministers taking office should
sign a document making clear they understand the restrictions
of publication had great merit. The duty to sign a formal commitment
to consult before publication should be placed clearly and explicitly
in the Ministerial Code. (Paragraph 136)
Ministers are already required to sign a document
on appointment making clear that they understand the Radcliffe
rules and will abide by them. They are also reminded of the rules
when leaving office. The Ministerial Code also makes clear that
former Ministers intending to publish their memoirs are required
to submit the draft manuscript in good time before publication
to the Cabinet Secretary and to conform to the Radcliffe principles.
If the new system is treated seriously, it will
affect both authors and government. Both will have an incentive
to negotiate properly, and to take account of the views of an
appeal body. If the government cannot approve a work and it is
nonetheless published, it must go to court to assert copyright
and pursue profits. The government will have both a weapon and
an incentive to negotiate as, apart from cost, court cases can
increase the publicity given to the work in question. (Paragraph
137)
Similarly, authors will know that if they publish
without agreement, they will face legal consequences and may forgo
their profits. If government delays unnecessarily, or refuses
clearance against the advice of the Advisory Committee, authors
will have a choice. They can explore a legal challenge to the
government, or simply take the risk of publishing without agreement.
Their position would have been strengthened if the government
had been unreasonable. This new system will not prevent any author
publishing anything he or she wishes, but it will reduce the incentive
to spice up memoirs with gratuitous material. (Paragraph 138)
It will be important that negotiations take place
in an atmosphere where the bias is towards publication with an
opportunity for appeal to a body of the kind outlined in this
report. Equally, the government should be prepared to take legal
action, in those cases where it is appropriate to protect confidentiality
in government. It would then be for the courts to decide whether
the public interest in publication was so great that it overrode
other obligations, and award remedies and costs accordingly. Much
will depend on the context, merits and details of particular cases
and how the balance between openness and confidentiality is drawn.
Future negotiations will be informed by such judgements. (Paragraph
139)
The rules for publication need clarification and
bringing up to date. The Cabinet Office and FCO have begun to
do this, but in an incoherent and haphazard way. The events of
the last year have shown that without proper clarity, decisions
can be driven by expediency, and assessment of the personalities
of those involved, rather than by clear principle. The legal remedies
we propose, for both author and government, only come into play
if authors publish without consent, or consent is unreasonably
withheld, after appeal procedures are exhausted. They contain
safeguards for both sides. We hope that recourse to law would
occur rarely, if at all, and that agreed guidelines with fair
procedures to implement them would ensure successful negotiated
outcomes. (Paragraph 240)
The Government shares the Committee's view that it
should be prepared to take legal action where appropriate to protect
confidentiality in government. However, it sees such action as
a last resort and it hopes that the procedures it is putting in
place will strengthen existing arrangements and that both government
and prospective authors will have an incentive to negotiate properly.
Nothing in this report will constrict the opportunity
to publish memoirs. There should always be a bias in favour of
publication, for the public interest reasons we have identified.
However this has to be balanced against another public interest,
which is the need for there to be a private space for frank discussion
within government, and for this to enjoy some kind of protection.
We have sought in this report to strike this balance sensibly.
Above all, our proposals are designed to bring more certainty
and clarity to the principles and procedures involved in the consideration
of memoirs. This should in turn bring more confidence into the
system, on all sides, and help to avoid the sort of recent difficulties
that have prompted this inquiry (Paragraph 141).
The Government shares the Committee's views on the
publication of memoirs and diaries and believes that the proposals
it has set out in response to this report will help to provide
more certainty and clarity to the principles and procedures involved
in the consideration of memoirs. The Government is grateful to
the Committee for its excellent and thorough consideration of
this sensitive issue.
November 2007
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