Attorney-General v Jonathan Cape Ltd

Facts

Richard Crossman, who had been a Cabinet minister in the Labour government of the 1960s, kept diaries in which he recorded discussions in Cabinet and advice given to ministers. After his death his literary executors sought to publish the diaries through the publishers Jonathan Cape, and an extract was to appear in a newspaper. The Attorney General brought proceedings to restrain publication on the ground that it would breach the confidentiality of Cabinet discussions.

History

The Attorney General sued the publishers, the executors and the newspaper in the Queens Bench Division, and the claim was heard at first instance by Lord Widgery CJ sitting alone.

Issue

Whether the law of confidence can be used by the Crown to restrain publication of the proceedings of the Cabinet, and if so whether the public interest in confidentiality outweighed the public interest in publication of the diaries.

Held

The injunction was refused in respect of the diary extracts in issue. The court accepted that Cabinet proceedings are in principle protected by the law of confidence, but held that the Attorney General had not shown that publication of the passages, relating to events about ten years earlier, would damage the public interest.

Ratio

• The convention of collective responsibility is not itself enforceable in law, but the law of confidence can be used by the Crown to protect the confidentiality of Cabinet discussions where the public interest requires it.
• The weight of the public interest in confidentiality diminishes with the passage of time, and it must be shown that publication would damage the public interest at the time it is proposed, for example by affecting the frankness of present discussion or matters of security.

The judgments

Key reasoning

• The court accepted that the protection of Cabinet secrecy rests on the public interest in ministers being able to speak frankly and in the maintenance of collective responsibility, and that this interest could be protected by an injunction.
• The court held that the Crown must show that the public interest in confidentiality is such as to override the public interest in free speech, and that the court should consider the nature of the material, the period which has passed and the likely effect of disclosure.
• On the facts the material was about ten years old, the Cabinet discussions in question had little continuing sensitivity, and the Attorney General had not shown that publication would harm the working of government.

Obiter

• The court indicated that some material, such as that bearing on national security or foreign relations, might remain confidential for a longer period and could be protected by the law.

Where it fits in the module

In the Constitution course the case is used to examine the relationship between constitutional conventions and law, and the doctrine of collective ministerial responsibility. It shows the courts recognising a convention as a source of public interest without making it directly enforceable, and it raises the debate about whether conventions should be given legal force.

Criticisms

• The decision leaves the status of the convention unclear, since it denies that conventions are law yet allows them to shape the remedy, and this blurs the line between legal and political rules.
• The time limited protection of Cabinet confidences is vague, and the decision gives little guidance on when confidentiality ends or on who decides the damage to the public interest.
• Using the private law of confidence to protect governmental secrecy is an awkward fit, as the Crown is not a private party and the public interest in disclosure of how government works may be weighed in ways the courts are poorly placed to assess.