Attorney-General V Jonathan Cape Ltd [1976] QB 752. (Public Interest Case) Essay, Research Paper

Between 1964-70, whilst a Minister of the Labour Government, Richard Crossman kept diaries of Cabinet proceedings. It was his intention to publish the diaries, giving the public a detailed account of government affairs. Following Crossman’s death in 1974, the diaries were left to a number of literary executors, including the defendants to ensure its publication. In January 1975, extracts of the diaries were published in the Sunday Times. This though was without the approval of the Cabinet Secretary, as was the normal practice for such material. Subsequently, the Attorney-General bought action for two injunctions. Firstly, to prevent the publication of the diaries by the literary executors, and secondly, to enjoin the Sunday Times from any publication of extracts. The Attorney-General’s arguments were based on the convention of collective responsibility and the ensuing doctrine of confidentiality. It was contended that the contents of the diaries were confidential, thus publication would be contrary to public interest and the convention of collective responsibility. The action for injunction though, was significant as there was no precedent in this area. Whilst the equitable doctrine of confidence had developed so not to allow profit from the disclosure of information received in confidence over domestic1, private2 or commercial3 matters, this had never been applied to public secrets. Lord Widgery though, saw no reason why the doctrine could not be extended, as a duty of confidence was owed to the Crown. It was judged that for an injunction to be granted, three criteria were needed to be fulfilled. These were breach of confidence, public interest requiring restraint of publication and no other contrary public interest of greater priority. Disclosure would be permitted later though, when the material ceased to be confidential, the precise time being left to the courts discretion. With the Crossman Diaries being over ten years old, disclosure was subsequently allowed. The significance of this decision lays in its ruling over collective responsibility and the doctrine of confidence which seems to be inconsistent with principles of open and accountable Government. Constitutionally, the decision reaffirmed that conventions are not enforceable, but is a factor in resolving relevant cases. For conventions are certain standards that impose limitations on the behaviour of people. The convention of collective responsibility relates to unanimity in government. Which along with the doctrine of confidentiality requires Cabinet proceedings to be kept secret. Traditionally, if a Minister disagreed with policy, it would still be supported in public, if not, there was a threat of dismissal from office. Furthermore, the Minister was obliged to resign if the policy was so contrary to personal belief that it could not be openly supported. There is an example though of where the convention has failed to apply in modern government. In 1975, a national referendum was held concerning continued participation in the EEC, the Labour Cabinet at that time, agreed to openly differ on this issue. This implied freedom to openly disclose their views irrespective of the majority view in the Cabinet. Such an exemption of the convention on such a major policy area may indicate the lessening influence of the convention in government today. Under the convention, if there is no outward unanimity, with individual views of identified Ministers no longer confidential this would undermine the government. Thus effecting the confidence enjoyed by the government in Parliament, which is crucial for the executive to function effectively. However, this seems somewhat anachronistic with the recent growth in media networks. For this has induced widespread public knowledge of the Cabinet and individual Ministers in particular. This is highlighted in how unattributable leaks have changed since Jonathan Cape. Where Lord Widgery accepted the presence of leaks in the system except when it is seen to ‘..identify the Ministers who voted one way or another..because it undermines the doctrine of joint responsibility.’4 It is unlikely that such leaks now would have the same effect, as the perception now is of a Cabinet comprised of differing ideology, hence differences are inevitable. During the 1980’s the press often identified differences in Cabinet over policy between ‘Thatcherites’ and ‘Wets’5 , this though was not seen to materially undermine the government, or inhibit free discussion within the Cabinet, as the convention suggests. During the same government though, two incidents occurred that were seen to undermine the confidence in the Government. The first was the Westland Affair in 1985-6, involving the resignation of two senior Ministers and the public condemnation of policy and cabinet proceedings by one of the resigning Ministers6 . Whilst the row over entry into the ERM7 and economic policy8 between the Prime Minister and the subsequent resignation of two leading Ministers in 1989, proved very damaging to the government, subsequently being one of the major factors in the eventual resignation of Margaret Thatcher. This evidence of the continuing convention of collective responsibility though seems to be in contrast to a increasingly ‘Prime Ministerial’ government opposed to a Cabinet government. For the Prime Minister has been seen to usurp the traditional role of Cabinet as the main decision-maker, through media attention and increasing individual responsibility and power. In addition, the recent spate of memoirs from members of the Cabinet in the 1980s, have been ignored by the government in legal terms. Most notably, in ‘The Downing Street Years’, events less than ten years old concerning Cabinet proceedings were recorded by Margaret Thatcher9, which would be likely to fall under matters held to be confidential under Jonathan Cape. However, there was no attempt by the Government to prevent publication10 . Thus, despite potentially broad powers at common law to restrict disclosures the Government has been reluctant to use this. This though maybe explained by the deterrent effect of Jonathan Cape, in the aftermath of its decision. For the general perception then, was that injunctions would be used, therefore substantial costs and delays would be involved in any attempt to disclose secrets due to potential litigation. Hence the court’s decision may have discouraged the disclosure of material of considerable public interest. This acts as further evidence of the contradiction between the requirement for secrecy and an open government. In Jonathan Cape, even though the public interest in freedom of information was acknowledged by the court, public interest in confidentiality was given priority. It is freedom of information which is required for a government to be open and therefore accountable. Accountability being vital, for with the government being responsible for to Parliament, its actions can only be checked if there is knowledge of these proceedings. Secrecy, meanwhile, implies less knowledge and therefore less curbs on government, hence arbitrariness and misgovernment. Openness, is also necessary if the opposition, pressure groups and individuals are to be capable of contributing to policy-making, this being a vital characteristic of democracy. Despite this, the government relied on Jonathan Cape in the Spycatcher case11 . An injunction in this case was eventually granted to prevent publication in the United Kingdom of memoirs of an ex-secret serviceman, with aduty of confidence being owed to the Crown Jonathan Cape has been seen to open up the opportunity of civil action over breaches of confidentiality as seen here. For whilst there are statutory controls in this area, civil action widens the competencies of government in this respect. The advantages for the government in civil actions are numerous, these include a lower burden of proof in civil actions and with no jury there is no possibility of a perverse verdict12 . Furthermore, through civil courts, action can be taken against third party recipients or disclosers of the material. Whilst the Official Secrets Act can only prosecute after publication, through civil action, injunctions maybe obtained to prevent publication, even by non-parties to the case through contempt. Thus not only did the decision in Jonathan Cape give the government greater legal powers, but changed its nature in a political sense. By establishing a legal obligation of confidentiality over public secrets, Ministers and Civil Servants owed a duty to the Crown which could not be acted upon in not only criminal but also civil courts. This would then set a new limit to conduct where increased secrecy became inherent in the system altering the functioning of government, as less openness was required. At present, the affairs of the British Government are kept very secret. Whilst there is a system of unattributable leaking which does provide a greater level of information, The information leaked is at the discretion of the government official in question. Thus there is a call to abolish the system of leaking and establish a proper consistent form of access to information. With many critics of the system feeling that acceptance of the practice of leaking, as seen in Jonathan Cape, is no more than ‘institutionalizing dishonesty’ . Such a move though is unlikely to occur in the near future. However, there has been attempts at increased openness recently with ‘The Next Step’ in 1988. This was reform of the Civil Service creating more openness, in an area which has traditionally reinforced ideas of confidentiality and collective responsibility. This marks a move away from Jonathan Cape, where much emphasis was given to confidentiality within government. The need to introduce market forces into the system has subsequently initiated the need for information and openness in the system. In addition, it is now accepted that the views of individual government departments will be aired under public inquiry. This was seen most recently in the Matrix-Churchill inquiry which called upon the Department of Trade and Industry for questioning, which took place in public. This implies a gradual breakdown of the secrecy, which was emphasised in Jonathan Cape to allow the government to function more effectively. This move is seen to be in accord with the decreasing status of the collective responsibility as a constitutional convention. However, this seems in direct conflict to the Official Secrets Act 1989, which although limited the number of classifications for confidential material from the 1911 Act, failed to provide a right to information and did not provide a defence of public interest for any breach of this statute. Thus Jonathan Cape is significant because despite the need for openness, in the long term the decision granted great powers of secrecy for the government. Although these powers have not appeared to be applied in excess, there are still potential problems in allowing the government to classify public material relevant to the functioning of the State as confidential, therefore acting as a block on accountability. However with the convention of collective responsibility becoming less relevant it does seem that the power accorded to the Government through Jonathan Cape may not be so easily justified today. BIBLIOGRAPHY: Turpin. British Government and the Constitution. 2nd Edn.1990 Jowell & Oliver. The Changing Constitution. 2nd Edn. 1989 ( Freedom of Information; The Constitutional Impact. Rodney Austin) Cases Referred To: Attorney-General v Jonathan Cape [1976] QB 752 Argyll v Argyll [1965]2 WLR 790 Albert v Strange (1894)1 H&T1 Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948)65 R.P.C. 203 Attorney-General v Guardian Newspaper Ltd. [1987]1 WLR 1248 Statutes Referred To: Official Secrets Act 1989