Foreign and Commonwealth Office Annual Report 2007-08 - Foreign Affairs Committee Contents

E-mail correspondence to the Clerk of the Committee from Sir Edward Clay, KCMG, the British High Commissioner Kenya (retired)

  Many thanks. I am grateful to you for putting the matter before the Chairman of the FAC. As It happens, I have just had the views of Liberty, and attach them.

  I shall myself be away from 5 April for two weeks in the US. If I hear nothing beforehand, I look forward to being in touch after our return.

26 March 2008


  NB: These extracts below come from Liberty's letter to me of l2 March. Their letter is a specific piece of advice in response to an individual query and is not intended as a general statement of Liberty's position on this issue. It has not been produced as a brief for parliament or the media.

  "...I understand that, after retiring from the Diplomatic Service, you were recruited by the Foreign and Commonwealth Office for a part time position. You were asked to sign form DSR 5 [This is a conflation of the revised DSR 5 and the draft letter of appointment based upon it—EC]. I understand that this was an undertaking that you would not publish any account of your experience as a diplomat, or any material which draws on or appears to draw on your experience, without first seeking authorisation from the appropriate authority. This undertaking would subsist even after the diplomat had left the service.

  You refused to sign the document as you consider that it would hand the FCO oversight over what you wrote for the rest of your life. You were nonetheless allowed to take up your post, but following some comments you made in the Today programme in relation to the decision to discontinue the prosecution of BAE by the SFO, you were summarily dismissed. You have not been paid for the work you had so far undertaken.

  Thank you for bringing this matter to our attention and I can understand why you may be concerned about the possibility of this form being used to restrict the freedom of expression of public officials.

  As I understand the forms, they are intended to form part of the contractual agreement between the civil servant and his or her employer. There is nothing necessary improper about this. Civil servants are already under a duty, set out in paragraph 10 of the Civil Service Code not to seek to frustrate or influence the policies, decisions or actions of Ministers, Assembly Secretaries or the National Assembly as a body by the unauthorised, improper or premature disclosure outside the Administration of any information to which they have had access us civil servants.

  If a civil servant does breach the terms of the agreement during the course of the employment, by publishing information obtained in the course of their employment without the proper approval, the employer may dismiss the employee for breach of the contract of employment. This will then be a matter of employment law. If the employee considers that the dismissal was unfair or unlawful in some way, it will be open to them to bring an action either in the courts for breach of contract or in the Employment Tribunal for unfair dismissal. Both the ET and the Courts would be bound by the Human Rights Act 1998 to act compatibly with the employee's rights under the European Convention on Human Rights, including the right to freedom of expression set out in Article 10 of the Convention.


  The question therefore will be whether this agreement can be used to bind the actions of civil servants after their contract of employment has ended. I suggest that it will be of limited use. The civil servant will of course be bound by the Official Secrets Act which you acknowledge and do not object to. This agreement will not interfere with that duty.


  The civil servant will also be bound by the normal laws of confidence. This duty of confidence does not derive from the contract, but is imposed by the common law. It will allow the employer bring an action for breach of confidence to prevent the disclosure of the confidential material and to seek compensation for any damage caused by the disclosure. However, the cause of action will only arise where the material is confidential, and the employee may be able to defeat the claim if he or she can show that the disclosure is in the public interest. Again, in adjudicating in any action for breach of confidence, the courts will be required to take into account the Article 10 rights of the employee.


  The only thing that the form may add is that it may allow the FCO to bring an action for breach of contract for disclosure of information which is not a breach of the Official Secrets Act nor an actionable breach of confidence.

  The courts have been reluctant to allow employer to enforce post-contractual restraints on the activity of its employees. In respect of the use of information obtained in the course of the employment, the courts have protected genuinely confidential information or matters which could be described as `trade secrets' but have refused to enforce attempts to prevent the use of more general information. Of course, where the employer is the FCO, it may be that the courts will take a different attitude, but this is a matter which is yet to be tested by the courts.

  I should stress that the FCO itself is bound by the Convention. This means that any disproportionate interference with the freedom of expression of a former diplomat will be unlawful and may be challenged either by way of Judicial Review or thought [sic—through] a claim under the Human Rights Act. In addition, if the FCO attempts to enforce this agreement through the courts, the courts will, as I have set out above, also be bound by the HRA..."

26 March 2008

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