Attorney General v Jonathan Cape Ltd [1975] 3 All ER 484, EWHC
Citation: Attorney General v Jonathan Cape Ltd [1975] 3 All ER 484, EWHC
Rule of thumb: Are Government meetings confidential? Yes, as a general rule these are highly confidential, and exceptions will need to be relied on in order for these to be disseminated.
Judgment:
The basic facts of this case were that Richard Crossman, a former minister, kept a number of diaries and recorded what was said in cabinet meetings, and these were set to be published. Cabinet meetings are confidential by convention, although until this case it had not actually been written down as a source of law. The Court held that the minutes could not be published and that in circumstances like these very important customs or conventions, not actually written into law, could still provide an important and valid source of law to be relied on.
Ratio-decidendi:
‘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’, LCJ Widgery.
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