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Attorney-General v Jonathon Cape [1976] QB 752

LORD WIDGERY CJ : These are two actions for injunctions to restrain the publication, either in whole or in part, of the political diaries of the late Richard Crossman. Mr. Crossman was a Cabinet Minister in the Labour government of 1964 to 1970, and during this period he kept a detailed diary, and kept this diary to the knowledge of his colleagues in the Cabinet. When the government fell in 1970 and he was no longer employed as a Cabinet Minister, Mr. Crossman began to collate his diaries with a view to their publication.... Mr. Crossman had appointed three literary executors, and these executors were naturally concerned to proceed with preparing the diaries for publication,....

It has always been assumed by lawyers and, I suspect, by politicians, and the Civil Service, that Cabinet proceedings and Cabinet papers are secret, and cannot be publicly disclosed until they have passed into history. It is quite clear that no court will compel the production of Cabinet papers in the course of discovery in an action, and the Attorney-General contends that not only will the court refuse to compel the production of such matters, but it will go further and positively forbid the disclosure of such papers and proceedings if publication will be contrary to the public interest.

The basis of this contention is the confidential character of these papers and proceedings, derived from the convention of joint Cabinet responsibility whereby any policy decision reached by the Cabinet has to be supported thereafter by all members of the Cabinet whether they approve of it or not, unless they feel compelled to resign. It is contended that Cabinet decisions and papers are confidential for a period to the extent at least that they must not be referred to outside the Cabinet in such a way as to disclose the attitude of individual Ministers in the argument which preceded the decision. Thus, there may be no objection to a Minister disclosing (or leaking, as it was called) the fact that a Cabinet meeting has taken place, or, indeed, the decision taken, so long as the individual views of Ministers are not identified.

There is no doubt that Mr. Crossman's manuscripts contain frequent references to individual opinions of Cabinet Ministers, and this is not surprising because it was his avowed object to obtain a relaxation of the convention regarding memoirs of ex-Ministers to which Sir John Hunt referred. There have, as far as I know, been no previous attempts in any court to define the extent to which Cabinet proceedings should be treated as secret or confidential, and it is not surprising that different views on this subject are contained in the evidence before me. The Attorney-General does not attempt a final definition but his contention is that such proceedings are confidential and their publication is capable of control by the courts at least as far as they include (a) disclosure of Cabinet documents or proceedings in such a way as to reveal the individual views or attitudes of Ministers; (b) disclosure of confidential advice from civil servants, whether contained in Cabinet papers or not; (c) disclosure of confidential discussions affecting the appointment or transfer of such senior civil servants.

The Attorney-General contends that all Cabinet papers and discussions are prima facie confidential, and that the court should restrain any disclosure thereof if the public interest in concealment outweighs the public interest in a right to free publication. The Attorney-General further contends that, if it is shown that the public interest is involved, he has the right and duty to bring the matter before the court. In this contention he is well supported by Lord Salmon in Reg. v. Lewes Justices, Ex parte Secretary of State for the Home Department [1973] A.C. 388, 412, where Lord Salmon said:

"when it is in the public interest that confidentiality shall be safeguarded, then the party from whom the confidential document or the confidential information is being sought may lawfully refuse it. In such a case the Crown may also intervene to prevent production or disclosure of that which in the public interest ought to be protected."

I do not understand Lord Salmon to be saying, or the Attorney-General to be contending, that it is only necessary for him to evoke the public interest to obtain an order of the court. On the contrary, it must be for the court in every case to be satisfied that the public interest is involved, and that, after balancing all the factors which tell for or against publication, to decide whether suppression is necessary.

The defendants' main contention is that whatever the limits of the convention of joint Cabinet responsibility may be, there is no obligation enforceable at law to prevent the publication of Cabinet papers and proceedings, except in extreme cases where national security is involved. In other words, the defendants submit that the confidential character of Cabinet papers and discussions is based on a true convention as defined in the evidence of Professor Henry Wade, namely, an obligation founded in conscience only. Accordingly, the defendants contend that publication of these Diaries is not capable of control by any order of this court.

If the Attorney-General were restricted in his argument to the general proposition that Cabinet papers and discussion are all under the seal of secrecy at all times, he would be in difficulty. It is true that he has called evidence from eminent former holders of office to the effect that the public interest requires a continuing secrecy, and he cites a powerful passage from the late Viscount Hailsham to this effect. The extract comes from a copy of the Official Report (House of Lords) for December 21, 1932, in the course of a debate on Cabinet secrecy. Lord Hailsham said; col. 527:

"But, my Lords, I am very glad that the question has been raised because it has seemed to me that there is a tendency in some quarters at least to ignore or to forget the nature and extent of the obligations of secrecy and the limitations which rigidly hedge round the position of a Cabinet Minister. My noble friend has read to your Lordships what in fact I was proposing to read - that is, the oath which every Privy Councillor takes when he is sworn of His Majesty's Privy Council. Your Lordships will remember that one reason at least why a Cabinet Minister must of necessity be a member of the Privy Council is that it involves the taking of that oath. Having heard that oath read your Lordships will appreciate what a complete misconception it is to suppose, as some people seem inclined to suppose, that the only obligation that rests upon a Cabinet Minister is not to disclose what are described as the Cabinet's minutes. He is sworn to keep secret all matters committed and revealed unto him or that shall be treated secretly in Council."

Lord Hailsham then goes on to point out that there are three distinct classes to which the obligation of secrecy applies. He describes them as so-called Cabinet minutes; secondly, a series of documents, memoranda, telegrams and despatches and documents circulated from one Cabinet Minister to his colleagues to bring before them a particular problem and to discuss the arguments for and against a particular course of conduct; and, thirdly, apart from those two classes of documents, he says there is the recollection of the individual Minister of what happens in the Cabinet. Then the extract from Lord Hailsham's speech in the House of Lord's report continues in these words:

"I have stressed that because, as my noble and learned friend Lord Halsbury suggested and the noble Marquis, Lord Salisbury, confirmed, Cabinet conclusions did not exist until 16 years ago. The old practice is set out in a book which bears the name of the noble Earl's father, Halsbury's Laws of England, with which I have had the honour to be associated in the present edition."

Then the last extract from Lord Hailsham's speech is found in col. 532, and is in these words:

"It is absolutely essential in the public interest that discussions which take place between Cabinet Ministers shall take place in the full certainty of all of them that they are speaking their minds with absolute freedom to colleagues on whom they can explicitly rely, upon matters on which it is their sworn duty to express their opinions with complete frankness and to give all information, without any haunting fear that what happens may hereafter by publication create difficulties for themselves or, what is far more grave, may create complications for the King and country that they are trying to serve. For those reasons I hope that the inflexible rule which has hitherto prevailed will be maintained in its integrity, and that if there has been any relaxation or misunderstanding, of which I say nothing, the debate in this House will have done something to clarify the position and restate the old rule in all its rigour and all its inflexibility."

The defendants, however, in the present action, have also called distinguished former Cabinet Ministers who do not support this view of Lord Hailsham, and it seems to me that the degree of protection afforded to Cabinet papers and discussion cannot be determined by a single rule of thumb. Some secrets require a high standard of protection for a short time. Others require protection until a new political generation has taken over. In the present action against the literary executors, the Attorney-General asks for a perpetual injunction to restrain further publication of the Diaries in whole or in part. I am far from convinced that he has made out a case that the public interest requires such a Draconian remedy when due regard is had to other public interests, such as the freedom of speech: see Lord Denning M.R. in In re X (A Minor) (Wardship: Jurisdiction) [1975] Fam. 47.

Some attempt has been made to say that the publication of these Diaries by Mr. Crossman would have been a breach of his oath as a Privy Councillor, and an echo of this argument is, of course, to be found in Lord Hailsham's words recently quoted. This is, however, not seriously relied upon in the two actions now before me, and the Attorney-General concedes that the present defendants are not in breach of the Official Secrets Acts. It seems to me, therefore, that the Attorney-General must first show that whatever obligation of secrecy or discretion attaches to former Cabinet Ministers, that obligation is binding in law and not merely in morals.

I have read affidavits from a large number of leading politicians, and the facts, so far as relevant, appear to be these. In 1964, 1966 and 1969 the Prime Minister (who was in each case Mr. Harold Wilson) issued a confidential document to Cabinet Ministers containing guidance on certain questions of procedure. Paragraph 72 of the 1969 edition provides:

"The principle of collective responsibility and the obligation not to disclose information acquired whilst holding Ministerial office apply to former Ministers who are contemplating the publication of material based upon their recollections of the conduct of Cabinet and Cabinet committee business in which they took part."

The general understanding of Ministers while in office was that information obtained from Cabinet sources was secret and not to be disclosed to outsiders.

There is not much evidence of the understanding of Ministers as to the protection of such information after the Minister retires. It seems probable to me that those not desirous of publishing memoirs assumed that the protection went on until the incident was 30 years old, whereas those interested in memoirs would discover on inquiry at the Cabinet Office that draft memoirs were normally submitted to the Secretary of the Cabinet for his advice on their contents before publication. Manuscripts were almost always submitted to the Secretary of the Cabinet in accordance with the last-mentioned procedure. Sir Winston Churchill submitted the whole of his manuscripts concerned with the war years, and accepted the advice given by the Secretary of the Cabinet as to publication.

In recent years, successive Secretaries of the Cabinet, when giving advice on the publication of a Minister's memoirs, were much concerned about (a) disclosure of individual views of Members of the Cabinet in defiance of the principle of joint responsibility; (b) disclosure of advice given by civil servants still in office; (c) disclosure of discussions relating to the promotion or transfer of senior civil servants.

Mr. Crossman, as appears from the introduction to volume one of his Diaries, disapproved of the submission of manuscripts to the Secretary of the Cabinet. He made no attempt to admit the three categories of information just referred to, and expressed the intention to obtain publication whilst memories were green.

Mr. Crossman made no secret of the fact that he kept a diary which he intended to use for the writing of his memoirs. It was contended on behalf of the literary executors that any bond of confidence or secrecy normally attending upon Cabinet material had been lifted in Mr. Crossman's case by consent of his colleagues. Even if, as a matter of law, a Minister can release himself from a bond of secrecy in this way, I do not find that Mr. Crossman effectively did so. It is not enough to show that his colleagues accepted the keeping of the diary. It was vital to show that they accepted Mr. Crossman's intention to use the diary whether it passed the scrutiny of the Secretary of the Cabinet or not. The strongest evidence in support of this is in Lord Gordon-Walker's affidavit sworn on July 27, 1975, when he said:

"It was obvious to, and accepted by Mr. Crossman's Cabinet colleagues, that Mr. Crossman intended publication; that his publication would include detailed accounts of Cabinet committee meetings, including the direct attribution to members of views which they expressed there."

I would have welcomed the opportunity to discuss this more fully with Lord Gordon-Walker because he disclaims any knowledge of Sir John Hunt's parameters, and says that his understanding of the procedure of submitting manuscripts to the Secretary of the Cabinet was to avoid "inadvertent breaches of national security," rather than to protect the doctrine of joint responsibility.

The main framework of the defence is to be found in eight submissions from Mr. Comyn. The first two have already been referred to, the allegation being that there is no power in law for the court to interfere with publication of these diaries or extracts, and that the Attorney-General's proper remedy lies in obtaining a change of the statute law.

I have already indicated some of the difficulties which face the Attorney-General when he relied simply on the public interest as a ground for his actions. That such ground is enough in extreme cases is shown by the universal agreement that publication affecting national security can be restrained in this way. It may be that in the short run (for example, over a period of weeks or months) the public interest is equally compelling to maintain joint Cabinet responsibility and the protection of advice given by civil servants, but I would not accept without close investigation that such matters must, as a matter of course, retain protection after a period of years.

However, the Attorney-General has a powerful reinforcement for his argument in the developing equitable doctrine that a man shall not profit from the wrongful publication of information received by him in confidence. This doctrine, said to have its origin in Prince Albert v. Strange (1849) 1 H. & T. 1, has been frequently recognised as a ground for restraining the unfair use of commercial secrets transmitted in confidence. Sometimes in these cases there is a contract which may be said to have been breached by the breach of confidence, but it is clear that the doctrine applies independently of contract: see Saltman Engineering Co. Ltd. v. Campbell Engineering Co. Ltd. (1948) 65 R.P.C. 203. Again in Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41 Megarry J., reviewing the authorities, set out the requirements necessary for an action based on breach of confidence to succeed. He said, at p. 47:

"In my judgment three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself, in the words of Lord Greene M.R... must 'have the necessary quality of confidence about it.' Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."

It is not until the decision in Duchess of Argyll v. Duke of Argyll [1967] Ch. 302, that the same principle was applied to domestic secrets such as those passing between husband and wife during the marriage. It was there held by Ungoed-Thomas J. that the plaintiff wife could obtain an order to restrain the defendant husband from communicating such secrets, and the principle is well expressed in the headnote in these terms, at p. 304:

"A contract or obligation of confidence need not be expressed but could be implied, and a breach of contract or trust or faith could arise independently of any right of property or contract... and that the court, in the exercise of its equitable jurisdiction, would restrain a breach of confidence independently of any right at law".

This extension of the doctrine of confidence beyond commercial secrets has never been directly challenged, and was noted without criticism by Lord Denning M.R. in Fraser v. Evans [1969] 1 Q.B. 349, 361. I am sure that I ought to regard myself, sitting here, as bound by the decision of Ungoed-Thomas J.

Even so, these defendants argue that an extension of the principle of the Argyll case to the present dispute involves another large and unjustified leap forward, because in the present case the Attorney-General is seeking to apply the principle to public secrets made confidential in the interests of good government. I cannot see why the courts should be powerless to restrain the publication of public secrets, while enjoying the Argyll powers in regard to domestic secrets. Indeed, as already pointed out, the court must have power to deal with publication which threatens national security, and the difference between such a case and the present case is one of degree rather than kind. I conclude, therefore, that when a Cabinet Minister receives information in confidence the improper publication of such information can be restrained by the court, and his obligation is not merely to observe a gentleman's agreement to refrain from publication.

It is convenient next to deal with Mr. Comyn's third submission, namely, that the evidence does not prove the existence of a convention as to collective responsibility, or adequately define a sphere of secrecy. I find overwhelming evidence that the doctrine of joint responsibility is generally understood and practised and equally strong evidence that it is on occasion ignored. The general effect of the evidence is that the doctrine is an established feature of the English form of government, and it follows that some matters leading up to a Cabinet decision may be regarded as confidential. Furthermore, I am persuaded that the nature of the confidence is that spoken for by the Attorney-General, namely, that since the confidence is imposed to enable the efficient conduct of the Queen's business, the confidence is owed to the Queen and cannot be released by the members of Cabinet themselves. I have been told that a resigning Minister who wishes to make a personal statement in the House, and to disclose matters which are confidential under the doctrine obtains the consent of the Queen for this purpose. Such consent is obtained through the Prime Minister. I have not been told what happened when the Cabinet disclosed divided opinions during the European Economic Community referendum. But even if there was here a breach of confidence (which I doubt) this is no ground for denying the existence of the general rule. I cannot accept the suggestion that a Minister owes no duty of confidence in respect of his own views expressed in Cabinet. It would only need one or two Ministers to describe their own views to enable experienced observers to identify the views of the others.....

The Cabinet is at the very centre of national affairs, and must be in possession at all times of information which is secret or confidential. Secrets relating to national security may require to be preserved indefinitely. Secrets relating to new taxation proposals may be of the highest importance until Budget day, but public knowledge thereafter. To leak a Cabinet decision a day or so before it is officially announced is an accepted exercise in public relations, but to identify the Ministers who voted one way or another is objectionable because it undermines the doctrine of joint responsibility.

It is evident that there cannot be a single rule governing the publication of such a variety of matters. In these actions we are concerned with the publication of diaries at a time when 11 years have expired since the first recorded events. The Attorney-General must show (a) that such publication would be a breach of confidence; (b) that the public interest requires that the publication be restrained, and (c) that there are no other facts of the public interest contradictory of and more compelling than that relied upon. Moreover, the court, when asked to restrain such a publication, must closely examine the extent to which relief is necessary to ensure that restrictions are not imposed beyond the strict requirement of public need.

Applying those principles to the present case, what do we find? In my judgment, the Attorney-General has made out his claim that the expression of individual opinions by Cabinet Ministers in the course of Cabinet discussion are matters of confidence, the publication of which can be restrained by the court when this is clearly necessary in the public interest.

The maintenance of the doctrine of joint responsibility within the Cabinet is in the public interest, and the application of that doctrine might be prejudiced by premature disclosure of the views of individual Ministers.

There must, however, be a limit in time after which the confidential character of the information, and the duty of the court to restrain publication, will lapse. Since the conclusion of the hearing in this case I have had the opportunity to read the whole of volume one of the Diaries, and my considered view is that I cannot believe that the publication at this interval of anything in volume one would inhibit free discussion in the Cabinet of today, even though the individuals involved are the same, and the national problems have a distressing similarity with those of a decade ago. It is unnecessary to elaborate the evils which might flow if at the close of a Cabinet meeting a Minister proceeded to give the press an analysis of the voting, but we are dealing in this case with a disclosure of information nearly 10 years later.

It may, of course, be intensely difficult in a particular case, to say at what point the material loses its confidential character, on the ground that publication will no longer undermine the doctrine of joint Cabinet responsibility. It is this difficulty which prompts some to argue that Cabinet discussions should retain their confidential character for a longer and arbitrary period such as 30 years, or even for all time, but this seems to me to be excessively restrictive. The court should intervene only in the clearest of cases where the continuing confidentiality of the material can be demonstrated. In less clear cases - and this, in my view, is certainly one - reliance must be placed on the good sense and good taste of the Minister or ex-Minister concerned.

In the present case there is nothing in Mr. Crossman's work to suggest that he did not support the doctrine of joint Cabinet responsibility. The question for the court is whether it is shown that publication now might damage the doctrine notwithstanding that much of the action is up to 10 years old and three general elections have been held meanwhile. So far as the Attorney-General relies in his argument on the disclosure of individual ministerial opinions, he has not satisfied me that publication would in any way inhibit free and open discussion in Cabinet hereafter.

It remains to deal with the Attorney-General's two further arguments, namely, (a) that the Diaries disclose advice given by senior civil servants who cannot be expected to advise frankly if their advice is not treated as confidential; (b) the Diaries disclose observations made by Ministers on the capacity of individual senior civil servants and their suitability for specific appointments. I can see no ground in law which entitles the court to restrain publication of these matters. A Minister is, no doubt, responsible for his department and accountable for its errors even though the individual fault is to be found in his subordinates. In these circumstances, to disclose the fault of the subordinate may amount to cowardice or bad taste, but I can find no ground for saying that either the Crown or the individual civil servant has an enforceable right to have the advice which he gives treated as confidential for all time.

For these reasons I do not think that the court should interfere with the publication of volume one of the Diaries, and I propose, therefore, to refuse the injunction sought but to grant liberty to apply in regard to material other than volume one if it is alleged that different considerations may there have to be applied.