Case Comment

 

Case-Comment: Attorney-General v Jonathan Cape Ltd [1975] 3 All E.R. 484

                                                                                                                                                                                     Jessica Parry

 

i.     Introduction

This case is focused on the Crossman Diaries and whether the restraint of publication of this text is in the public interest on the grounds of preserving the doctrine of collective responsibility. The relevant parties to this case are the Attorney-General as the plaintiff and the Times Newspapers Ltd. and Jonathan Cape Ltd. as the defendants.

Cabinet Minister Crossman kept a diary of Cabinet meetings with the knowledge of his colleagues and also with the intent of publishing it.  Upon his death, executors prepared to publish the diaries and sent a copy to the Secretary of the Cabinet for approval.  The Secretary rejected the first volume of the 1964-1966 years in the name of public interest and upholding the doctrine of collective responsibility. After several letters of communication between the various parties, extracts were published without the Secretary’s consent in a January 1975 issue of the Sunday Times.  The Attorney-General then filed for an injunction to stop publication of the book or extracts from it in the name of public interest.

ii.    The Judgment of the Court

In the judgment by Lord Widgery, the court dismissed the action of the Attorney-General, but found that the court did retain the power to restrict the release of such information on public policy grounds.  Cabinet discussions only remain confidential to the point where release would not impact the doctrine of collective responsibility; given that the Crossman Diaries discuss events from over ten years ago, this information would not impact the doctrine and thus would no longer be confidential, meaning the Diaries could be published. In reaching this conclusion, Lord Widgery noted that other public interests, such as freedom of speech, must also be considered and that while it was true that the release of some information must be restricted, as is the case with issues of national security and Cabinet discussions in the short term, the same was not necessarily true for Cabinet discussions in the long term.  Lord Widgery found that the equitable doctrine used to restrict release of commercial secrets given in confidence could be extended to included such discussions, but that when looking to restrain publication in the name of public interest, the Attorney-General must show that release would breach confidence, restraint of publication is in the public interest, and there are no other areas of public interest that are at stake and more relevant.  Overall, there is not one hard and fast rule regarding to the release of information, but the facts of each particular disclosure must be considered and the conflicting values of public interest weighed against each other to ensure balance.

 iii.  Analysis of the Judgment

One of the most fundamental aspects of this ruling is that on first glance it appears to provide legal enforcement to a long-standing parliamentary convention, that being the doctrine of collective responsibility providing for confidential cabinet discussions.  As a source of constitutional law, conventions are non-legal rules that the courts are unable to enforce.  Reading the judgment of this case, it appears as if the courts are doing just the opposite by stipulating that they can in fact regulate the release of cabinet discussions protected by this convention.  Looking at the obiter dicta, however, it becomes evident that the court has come to this decision by expanding the law surrounding the equitable doctrine further than was done in Duchess of Argyll v. Duke of Argyll [1967] Ch. 302 to include protection for public secrets.  In this sense, one could argue that the court is not taking the bold step of upholding a constitutional convention in its own right, but instead looking to common law to cover what would be protected by the convention in question.  Lord Widgery highlights this distinction by saying in reference to such disclosures by members of parliament one must find that the, “obligation is binding in law and not merely in morals.”[1]  With this in mind, one could not successfully argue that it is the convention that is being upheld in and of itself by the courts, but instead it is being supported by established common law doctrines.

By looking to the law to support this convention, however, Lord Widgery also noted that it would be difficult to create a hard and fast rule in terms of restricting the release of information from cabinet discussions claiming that, “it seems to me that the degree of protection afforded to Cabinet papers and discussion cannot be determined by a single rule of thumb.”[2] Lord Widgery has again denied to uphold the strictest interpretation of the doctrine of collective responsibility, where all information would be withheld, by requiring an analysis of the surrounding circumstances, and tying this back to a balance with other public interest issues, such as the freedom of speech.

In this sense, the court has justified its reasoning well in coming to this decision; ultimately, Lord Widgery made his judgment considering public interest as a whole, and not just its protection with reference to a particular doctrine.  Taking this stance and also declaring that there cannot be a set rule with regards to such matters ensures that public interest is always at the forefront in terms of such matters and will not be made overlooked by such a rigidly defined rule.

Finally, the test set out in this case has more far reaching implications regarding public policy beyond the legality of constitutional conventions.  The test of weighing the various facets of public interest was put to use in Attorney General v Observer Ltd [1990] 1 A.C. 109 where the court applied it by weighing the importance of releasing confidential information against the public interest of disclosure.  Munro has also argued that cases such as this pose a challenge in terms of restricting criminals from profiting from their crimes through publication of their exploits.[3]  Evidently, Lord Widgery’s judgement cannot be strictly confined to constitutional matters.

iv.  Conclusions

In summary, this case appears to be one where the courts have given legal value to a convention; upon greater inspection, however, it is clear that the courts have instead relied on existing common law to fulfill the ultimate aim of the convention. In doing so, however, and calling for a balancing of public interests, this ruling has implications reaching beyond establishing the legality of constitutional conventions.


[1] Attorney-General v Jonathan Cape Ltd [1975] 3 All E.R. 484, [1976] Q.B. 752, [767] (Widgery LJ)

[2] Attorney-General v Jonathan Cape Ltd [1975] 3 All E.R. 484, [1976] Q.B. 752, [767] (Widgery LJ)

[3] Colin Munro, “When criminals sell their stories” [2006] P.L. Spr 58-83

 


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