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( 155 .)


in the public interest. Counsel for the defendants contended, on the other hand,
that if publication of Cabinet proceedings was contrary to the public interest,
that was a matter to be remedied by legislation.

Lord Widgery CJ: . . . 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 [but see now Air
Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394, 432], and the Attorney-General
151 Constitutional sources

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
There is no doubt that Mr Crossman™s manuscripts contain frequent references to individ-
ual 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. . . . 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) disclo-
sure 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 con-
tained 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 con-
fidential, 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. . . .
I do not understand . . . 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 . . . 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 pub-
lication 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 . . . 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 discussions 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
152 British Government and the Constitution

effect that the public interest requires a continuing secrecy, and he cites a powerful passage
from the late Viscount Hailsham to this effect. . . .
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. . . .
I have already indicated some of the difficulties which faced 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 & TW 1, has been frequently recognised as a ground for restrain-
ing the unfair use of commercial secrets transmitted in confidence. . . . It is not until the deci-
sion 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 MR in Fraser v Evans
[1969] 1 QB 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 pow-
erless 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
153 Constitutional sources

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 agree-
ment to refrain from publication.

Lord Widgery went on to deal with the argument for The Sunday Times that the
evidence did not establish the existence or scope of a convention of collective or
joint ministerial responsibility:

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 confi-
dential. 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 res-
pect 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 facets of the public interest contra-
dictory 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
154 British Government and the Constitution

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 infor-
mation, 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 simi-
larity 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 mate-
rial 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 restric-
tive. The courts should intervene only in the clearest of cases where the continuing confi-
dentiality 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 opin-
ions, he has not satisfied me that publication would in any way inhibit free and open dis-
cussion 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 grounds in law which entitle the court to restrain publi-
cation of these matters. A Minister is, no doubt, responsible for his department and account-
able 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 dif-
ferent considerations may there have to be applied. Injunction refused.
155 Constitutional sources

The report of the case concludes with an afterword by the Chief Justice:

Lord Widgery CJ said that the statement in his judgment that the courts would not restrict
publication of confidential communications between civil servants and Ministers was
restricted to the present proceedings and did not amount to a general ruling that the courts
had no power to do so in any circumstances.

The Attorney General may be said to have been victorious in this case
in gaining judicial acceptance of the principle that a legal obligation of con-
¬dentiality attaches to Cabinet proceedings, even though the court decided that
the Crossman diaries no longer, after the lapse of ten years, retained their
con¬dential character, and so fell outside the protection of the law. The court
fashioned from the ˜developing equitable doctrine™ of con¬dentiality, which had
in previous cases found its application in commercial and domestic relations,
a new rule for maintaining the secrecy of Cabinet proceedings.
In the course of the trial an American lawyer commented as follows:

Anthony Lewis, The Sunday Times, 3 August 1975

One of the main differences between the political systems of our two countries, we are
always told, is the much more active role of American judges; they feel free, as expounders
of a written Constitution, to change the law and to decide social and political questions that
would never be deemed appropriate for judicial decision in Britain. Felix Frankfurter, an
American Supreme Court justice who deplored his countrymen™s habit of looking to the courts
for salvation, often pointed to Britain as the happy example of a society that left political
issues to a democratic political institution, Parliament.
We have been taught also that the British system relies less than the American on legal
restraints, and more on the invisible restraints of honour and custom and responsibility. . . .
Yet in the Crossman Diaries case the Attorney-General asked the court to make new law
in a highly political area, that of State secrecy. (Political, that is, not in the partisan sense but
in the sense of affecting the nature of the governmental system.) And the result sought in
the suit would be to subject to law, and to Civil Service views, a personal discretion and
responsibility long exercised by Ministers.

It is important, however, to note Lord Widgery™s insistence that publication of
con¬dential Cabinet papers or discussions should be restrained only if the
public interest was shown to require such restraint and if there were ˜no other
facets of the public interest contradictory of and more compelling than that
relied upon™.
The new common law rule established in Attorney General v Jonathan Cape
Ltd was not considered by the Government to give su¬cient protection to
the con¬dentiality of government business. More stringent rules of non-
disclosure, recommended by a Committee of Privy Counsellors (the Radcli¬e
Committee, Cmnd 6386/1976), were adopted by the Government in 1976 as
156 British Government and the Constitution

rules of practice to which ministers would be required to agree. The Radcli¬e
rules do not supplant the common law but impose on ministers obligations, of
a non-legal kind, which are more precise and of wider scope than the legal oblig-
ation of con¬dentiality established in the ˜Crossman Diaries™ case. The rules
stipulate that, in general, ministers are not to disclose con¬dential discussions
for a period of ¬fteen years.

Ministerial Code (2005), para 6.18
The principle of collective responsibility and the need to safeguard national security, rela-
tions with other countries and the confidential nature of discussions between Ministers and
their civil servants impose certain obligations on former Ministers who are contemplating the
publication of material based upon their recollection of the conduct of Government business
in which they took part. They are required to submit their draft manuscript to the Secretary
of the Cabinet for comment and approval and to conform to the principles set out in the
Radcliffe Report of 1976.

It has been said that, although depending on voluntary observance, the system
˜works reasonably well™ (HC Deb vol 194, col 17, 1 July 1991. Cf R Brazier,
Ministers of the Crown (1997), pp 314“15.) Eric Barendt remarks of the Radcli¬e
rules that ˜they show the characteristic British indi¬erence to legal rules and
distrust of the courts in politically sensitive areas™ (Freedom of Speech (1985),
p 135). The protection of government information through the doctrine of
con¬dentiality, as endorsed in Jonathan Cape, was at the core of the ˜Spycatcher™


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( 155 .)