The case of Attorney-General v Jonathan Cape Ltd  QB 752 is one of a select few that become better known by a commonplace description or nickname, rather than by the names of the parties. It is more familiar as the Crossman Diaries case.
The facts of the case were simple. Richard Crossman, a socialist intellectual and writer, was a leading Labour politician in the 1950s and 1960s. From 1964 to 1970, while Harold Wilson was Prime Minister, Crossman was a Minister and member of the Cabinet. He was open about keeping a diary, that mixed the personal with the political, in his perspective on events at the heart of British government. He intended to publish his diaries, partly with the scholarly aim of providing a realistic account of contemporary central government. The classical account of “cabinet government,” as presented by Walter Bagehot in the nineteenth century (The English Constitution, 1867) had in his view become mythical or was anachronistic.
Crossman died in 1974, while his account was still being prepared for publication under the title, The Diaries of a Cabinet Minister. However, his survivors and literary executors (who included his widow Anne and Michael Foot, himself a Cabinet Minister when the case was heard) were determined to proceed. Jonathan Cape and another company were set to publish the books, and The Sunday Times, then under the editorship of Harold Evans, had bought serialisation rights for extracts, and had already published some, in something of a cat and mouse game.
The diaries included frank accounts of discussions and disagreements at Cabinet meetings, amongst other things. However, proceedings of the Cabinet had traditionally been covered by a veil of secrecy and the Cabinet Secretary would not countenance an unexpurgated version. The Government – by then another Labour Government was in office, with some of the same personalities involved – felt that it had to litigate in order to preserve such secrecy or confidentiality as a principle, and so the Attorney-General was instructed to try to persuade a court that injunctions should be issued against the publishers and the newspaper, to prevent any further publication. The attempt to block further publication failed. The case was heard by the Lord Chief Justice, Lord Widgery, and he refused to issue injunctions.
One of the problems facing the Attorney-General was that, while some obligation to preserve confidentiality had been recognised and generally accepted, the nature of the obligation appeared to be of a conventional rather than a legal kind, forming as it did part of the doctrine of ministerial responsibility. There was expert evidence from Professor H.W.R. Wade, a distinguished contemporary public lawyer, to confirm that “a true convention [is] an obligation founded in conscience only.” Accepting this, Lord Widgery concluded that the Attorney-General “would be in difficulty” if he were relying only on the convention.
Interestingly, the authorities had decided not to argue on the basis of breaches of the Official Secrets Act 1911, because of either doubts over its application or ambivalence about its use.
The Attorney-General, however, seeing how things were going, had added a second string to his bow. An established, if then somewhat obscure, part of the common law was the action for breach of confidence, which could protect against (or impose liability for) the wrongful disclosure of information that had been conveyed under an obligation of confidentiality. The obligation involved might be legally imposed or contractual or might arise through promises or understandings. This cause of action had chiefly been used to protect trade secrets or commercial confidences, and so it was novel to seek to apply it to information about government. Lord Widgery was persuaded that the conventional understandings could create a relevant obligation for this purpose. However, he also considered that the public interest in maintaining cabinet secrecy was time-limited. In effect, there was a stronger public interest in allowing disclosure of information about government after a period of time, and this would operate as a defence by negating the confidential character of the material. At an interval of roughly ten years from the events described – as applied to the publication of the first volume of the diaries that was in issue here – there were insufficient grounds to restrain publication.
There are several aspects of the Crossman Diaries case that are of interest to public lawyers and media lawyers. It may first be noticed that the publishers and newspapers could not appeal, because they had won. However, some consequences of the judgement, such as the holding that the law of confidence extended to information about government, were unwelcome news, so far as they were concerned.
In the years that followed, the law of confidence was destined to become much more familiar to lawyers. A decade or so later, it would be brought out of the toolbox again by a government which sought to prevent the publication of the book Spycatcher. Further down the line, the cause of action would become the vehicle for an expanded protection of privacy, especially after the Human Rights Act 1998 came into effect.
On the particular matter of ministerial memoirs, a Privy Council committee chaired by Lord Radcliffe was set up to make proposals. They recommended that ex-Ministers should, for up to 15 years after the events, submit their memoirs to the Cabinet Secretary for approval (or excisions) before publication (Cmnd 6386, 1976). The Ministerial Code now incorporates this rule (para 8.10), in an attempt to increase its moral force.
The Crossman Diaries were eventually published in three volumes, that run to more than 2,500 pages in total. The critic Clive James wrote that “there is so much detail crammed into these books that it is an act of bravery to pick them up” (New York Review of Books, 31 March 1977. Variously gossipy, outspoken, mundane and informative, they provided material on government and civil service that would be mined by the writers of the satirical comedy Yes, Minister as well as by more serious students of government.
(25 November 2014)
This blog post was written by Colin Munro, Emeritus Professor of Constitutional Law, University of Edinburgh, who regularly teaches on the Laws Study Support sessions.