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
LIBERTY'S
REPLY TO
QUESTIONS ABOUT
DSR 5
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.
AFTER THE
EMPLOYMENT
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.
CONFIDENCE
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.
POST CONTRACTUAL
RESTRAINT
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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