Attorney General v Jonathan Cape Ltd

The Attorney General applied for an injunction to stop Jonathan Cape Ltd and the Sunday Times publishing the diaries of the late Richard Crossman, a Cabinet minister for Housing in the Labour Party under Harold Wilson around 1964. The diaries recorded cabinet discussions, and advice given by or about civil servants. The Secretary of the Cabinet heard about the upcoming publication, asked for the contents but could not agree with the publishers about what to redact. The Sunday Times did in fact publish extracts despite the objections. The Attorney General argued the doctrine of collective responsibility would be undermined if confidential discussions were open to the public.

Lord Widgery LCJ held that there was no sufficient public interest in restraining disclosure because the events were 10 years before. The court does have the power to restrain disclosure of confidential information, to protect the doctrine of collective responsibility. But here there was no risk to future operation of collective responsibility that would inhibit free discussion in the Cabinet. There was no power, however, to restrain disclosure of advice given by civil servants or their opinions.[2] He said the following:

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&T 1, has been frequently recognised as a ground for restraining the unfair use of commercial secrets transmitted in confidence. Sometimes in these cases there is a contract which may be said to have been breached by the breach of confidence, but it is clear that the doctrine applies independently of contract: see Saltman Engineering Co. Ltd. v. Campbell Engineering Co. Ltd (1948) 65 R.P.C. 203 . Again in Coco v. A. N. Clark (Engineers) Ltd [1969] R.P.C. 41 Megarry J., reviewing the authorities, set out the requirements necessary for an action based on breach of confidence to succeed. He said, at p. 47:

"In my judgment three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself, in the words of Lord Greene M.R.... must 'have the necessary quality of confidence about it.' Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."

It is not until the decision 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 powerless 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 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 agreement to refrain from publication.

It is convenient next to deal with Mr. Comyn's third submission, namely, that the evidence does not prove the existence of a convention as to collective responsibility, or adequately define a sphere of secrecy. 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 confidential. 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 respect 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 other defence submissions are either variants of those dealt with, or submissions with regard to relief.

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.

The case established the principle that although conventions are not in and of themselves legally enforceable, they may give rise to legal obligations that the court may enforce.[3]

The book collection The Diaries of a Cabinet Minister was published in 1976.

• United Kingdom constitutional law